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REPORTS 


AND 


DISSERTATIONS, 


IN    TWO    PARTS. 


PART  I. 

REPORTS    OF    CASES     DETERMINED    IN    THE    SUPREME 

COURT  OF  THE  STATE  OF  VERMONT,  IN 

THE  YEARS  1789,  1790,  AND  1791. 

PART  II. 

Dissertations  on  the  Statute  adopting  the  Common  Law  of  England, 

the  Statute  of  Conveyances,  the  Statute  of  Offsets, 

and  on  the  Negotiability  of  Notes. 


WITH     AN 


APPENDIX, 


CONTAINING  FORMS  OF  SPECIAL  PLEADINGS  IN  SEVERAL  CASES;    FORM  OF  RECOG 
N1ZANCES;  OF  JUSTICES  RECORDS;  AND  OF  WAR- 
RANTS OF  COMMITMENT. 


BY  NATHANIEL   CHIPMAN, 

LATE    CHIEF    JUSTICE. 


RUTLAND: 

PRINTED  BY  ANTHONY  HASWELL, 
FOU  THE  AUTHOR;  M.DCC.XCIII. 


SECOND  EDITION. 

ST.  PAUL,  MINN.: 
WEST  PUBLISHING  COMPANY. 

1888. 


District  of  Vermont,  to  wit. 

Be  it  remembered,  That  on  the  twenty-first  day  of  January,  in  the  seventeenth  year 
of  the  independence  of  the  United  States  of  America,  the  Hon.  Nathaniel  Chipman,  of 
Rutland,  in  the  said  District,  Esq.  hath  deposited  in  this  office,  the  title  of  a  Book,  the- 
right  whereof  he  claims  as  Author,  in  the  words,  letters,  and  figures  following,  to  wit: 

Reports  and  Dissertations,  in  two  parts.  Part  I — Reports  of  Cases  determined  in  the 
Supreme  Court  of  the  State  of  Vermont,  in  the  years  1789,  1790,  and  1791.  Part  II— Dis- 
sertations on  the  Statute  adopting  the  Common  Law  of  England,  the  Statute  of  Convey- 
ances, the  Statute  of  Offsets,  and  on  the  Negotiability  of  Notes.  With  an  Appendix,  con- 
taining Forms  of  Special  Pleadings  in  several  cases;  Forms  of  Recognizances;  of  Justice 
Records;  and  of  Warrants  of  Commitment.  By  Nathaniel  Chipman,  late  Chief  Justice. 

In  conformity  to  the  act  of  the  Congress  of  the  United  States,  entitled  "An  act  for 
the  encouragement  of  learning,  by  securing  the  copies  of  Maps,  Charts,  and  Books  to  the 
authors  and  proprietors  of  said  copies  during  the  time  therein  mentioned." 

FREDERICK  HILL, 
Clerk  of  the  District  of  Vermont. 

N.  CHIP.  (*2) 


PART   FIRST. 


REPORTS  OF  CASES 

DETERMINED  IN  THE 

SUPREME   COURT 

OF  THE 

STATE   OF  VERMONT. 

v.  CHIP.  C*3) 


PREFACE  TO  THE  REPORTS. 


I  do  not  apprehend  any  apology,  for  publishing  the  following  reports,  to  be  nec- 
essary. In  our  mode  of  practice,  a  doubt  lest  the  principles  of  some  determinations 
may  have  been  erroneous,  ought  not  to  be  a  reason  for  withholding  their  publication. 
It  is  well  known,  that  the  maxims  and  precedents  of  the  English  law  do  not,  with  us 
apply  in  all  cases.  From  a  difference  of  government  and  a  difference  of  customs,  the 
reason  of  cases  frequently  differs.  The  english  common  law  writers  fail  us,  in  many 
instances.  It  becomes  necessary,  therefore  to  investigate  principles,  and  establish 
precedents  for  ourselves.  While  former  decisions  rest  only  in  the  memory  of  the 
Judge,  overburthened  in  term,  and  perplexed  with  a  multiplicity  of  cases;  or  in  the 
memory  of  the  counsel,  frequently  under  a  powerful  bias,  in  the  recollection  and  state- 
ment, little  assistance,  in  establishing  uniform  principles,  can  be  expected  from  pre- 
cedents. Such  is  the  order  of  courts  and  the  mode  of  practice  in  this  state,  that  the 
Judges  can  have  little  opportunity  for  deliberation.  They  are  necessitated  to  form 
their  opinions,  as  I  may  say,  in  transitu,  and  on  the  urgency  of  occasion.  It  is 
therefore,  of  importance  to  them,  and  to  the  public,  that  they  should  have  an  op- 
portunity of  reviewing  as  well  what  is  wrong  as  what  is  right  in  their  decisions.  This 
may  enable  them  to  correct  their  former  errors,  and  at  leisure  to  discover  those  prin- 
ciples of  Justice,  and  the  exceptions  and  limitations  of  each,  which  might  have  es- 
caped their  utmost  sagacity  in  the  hurry  of  the  circuit.  It  may  assist  them,  no  less, 
in  tracing,  establishing,  and  rendering  familiar,  on  every  emergency,  those  permanent 
principles,  of  which  they  had,  perhaps,  caught  only  a  glance  on  the  occasion. 

In  the  following  cases,  there  is  but  one  instance  of  a  difference  of  opinion  with 
the  Judges.  It  was  not  practiced  for  the  Judges  to  give  their  opinions  seriatim  on 
those  points,  in  which  they  were  agreed.  I  conceived  it  necessary  to  mention  this, 
lest  I  should  be  thought  to  have  omitted  the  arguments  of  my  brethren  on  the  bench. 

RUTLAND,  September  3,  1792. 

N.  CHIP.  (*4-5) 


HIV 


NAMES  OF  CASES. 


B 


Bennington  selectmen  vs.  M'  Gennes 45 


Chapin  vs.  Scott 33 

Cl&rkvs.  Campbell 57 

Conant  vs.  Bicknell 66 


Douglass  vs.  Spooner 74 


Havens  vs.  Griffin 42 


Ivers  vs.  Chandler 61 


Lyon  vs.  Ide . . . 
Ludlow  vs.  Gill 


M 


M'Kenzie  vs.  Putney  11 

Morrison  &  Freeman  vs.  Shattuck,  elal...     84 


Oliver  vs.  Chamberlain. 


PAGE. 

26 


Paine  0*.  Ely  &  Ely 14 

Paine  &  Morris  vs.  Smead 99 

Parker  vs.  Parker 27 

Pierson  vs.  Hovey,  et  al. 77 


B 


Rhodes  vs.  Risley 
Rich  vs.  Wait. . 


84 


Shattuck  vs.  Tucker 69 

State  of  Vermont  vs.  Annice 9 

State  of  Vermont  vs.  Marsh 28 

State  of  Vermont  vs.  Mather 32 

Stoddard  vs.  Allen 44 

U 

Underbill  vs.  Smith. .                                    ,  81 


W 
Wier  vs.  Church  . .  95 


N.  CHIP. 


(*6-7) 


ORANGE  COUNTY. 


NATHANIEL  CHIPMAN,  ESQ.  Chief  Justice. 

NOAH  SMITH,  ESQ.  and  )    A 
SAMUEL  KNIGHT,  ESQ.  /   **  ttonf 


e8' 


*9      *STATE  OF  VERMONT  vs.  ANNICB. 
(Orange,  Dec.  adj'd  term,  1789.) 

On  an  indictment  for  adultery  with  one 
E . 

Farrand,  attorney  for  the  state,  produced 
E ,  as  a  witness  to  prove  the  fact. 

Buck,  for  Annice,  objected,  that  no  person 
shall  be  allowed  to  testify  his  guilt  or  tur- 
pitude to  convict  another. 
*10          *By  the  court.  —  She  ought  not  in 
this  case,  to  be  admitted. 

Particepswas      In  tne  same  cause  reputation 
not  admitted  to  was  offered  in  evidence  to  prove 
Annice's  marriage. 

Court- — In  this  cause,  which  is  a  criminal 
prosecution,  reputation  cannot  be  admitted. 

Reputation  of  Though  in  an  action  on  the 
a  marriage  not  case  for  crim.  con.  it  might  be 
allowed-  admitted. 

Verdict,  NOT  GUILTY. 


*11      *STEDMAN  ex  dem.  M'KENZIE  vs.  J. 

PUTNEY. 

(Orange,  Dec.  adj'd  term,  1789.) 
Ejectment  for  lands  in  Tunbridge,  on  the 
second  division  of  the  original  right  of  —  . 

On  trial  to  the  jury,  it  was  objected  by  the 

defendant's  counsel,  that  it  does  not  appear, 

that  the  warning  for  the  pro- 

Objection.       prietor's  meeting  was  published 

It  does  not       r  ,. 

appear  by  the    according  to  law  ;  and  the  clerk 

proprietor's       na8  not  inserted,  that  the  pro- 

records,  that  .  ,      ,  ,r  , 

the  proprietors  prietor's  meeting  was  regularly 

meeting  was       warned.  It  is  not,  therefore  to  be 

presumed,  nor  proved  aliunde. 

Court.  —  The  better  way  is  for  the  clerk  to 

insert  the  warning  in  the  records,  and  that 

the  same  was  published  accord- 
it  is  the  better  ,  »     _1_1  U 

way  to  insert  it;  ing  to  law.     In  which  case  it 
but  this  is  not    wjii  be  presumed  to  be  so,  prima 

conclusive.  ^ 

*12         *But  if  it  be  omitted,  as  the  publica- 
tion is  not  a  corporate  act  of  the  pro- 
prietors, but  something  preparatory;  the  rec- 
{ire  no^  8O  conclusive  as 


Asthepnbii 
cation  IH  not  H    other  proof  .    As  to  the  publica- 

other>rprto'oTt>    tion  it8elf  in  tne  Papers.  there 

may  be  more      is   no  office,  no   repository,  to 

which  application  can  be  made 

N.  CHIP.  —  1 


on  occasion.    Witnesses  may  therefore  be  ad- 
mitted to  prove  this  point. 

Buck,  for  the  plaintiff,  offered  in  evidence 
a  vote  of  the  proprietors  reciting  a  neglect  of 
their  committee  to  make  return  of  the  second 
division,  and  directing  a  completion. 

The  defendant's  counsel  objected,  that  the 
vote  was  passed  since  the  commencement  of 
this  action. 

*Court. — If  there  was  no  title  at  the      *13 
commencement  of  the  suit,  it  cannot, 
as  to  the  purposes  of  this  suit,  be  aided  by 
any  subsequent  act. 

•L,.      ii          11          j  If  there  was 

Objection  allowed.  no  title  at 

Buck,  on  the  part  of  the  plain-  the  commence- 

,.jv.  ,  ,,     .r,  .    ,  ,  -V.        t      ment  of  the 

tiff,  moved  that  he  might  be  al-  BUit,  it,  cannot 

lowed    to  prove,   by    Witnesses,    be  aided  by  any 

the  division,  draught,  and  ac-   afterwards. 
ceptance. 

To  which  Jacob  and  Farrand,  for  the  de- 
fendant, objected. 

Court. — Partition  can  be  only  by  deed,  or 
in  the  method  pointed  out  by  Statute.     In 
the  first  case,  it  must  be  proved 
by  the  deed;  in  the  latter,  by      A  proprie- 

-i  ,          --T   J     tary  division 

the  proprietor's  records,     lou   under  the  stat- 
might  as  well  prove  a  convey-  ute-  can  be 

r    .  ,  "       proved  by  the 

ance  by  parole  evidence,  as  sev-  records  only, 
erance. 

Verdict,  NOT  GUILTY. 


*ELIJAH  PAINE,   esquire,  vs.  JOEL      *14 
ELY  and  JOEL  ELY,  jun. 

(Orange,  Dec.  adj'd  term,  1789.) 

This  was  an  action  on  a  bond  assigned  by 
the  sheriff  of  Windsor  county  to  the  plaintiff, 
conditioned,  that  Joel  Ely,  then 

.       Bonds  given 

a  prisoner  in  the  common  gaol  to  the  sheriff  of 
in  said  Windsor,  on  execution  w.  to  indemnify 

i    •     i'x»t  li        i        u    him  for  lotting 

at    the    plaintiff's    Stilt,    Should   aprl«onorto 

not  depart  the  liberties  of  said  the  liberties  ot 
prison,  &c.  (in  common  form.)  Bn£&!°hat 
Breach  assigned,  that  the  said  ^'«  prisoner 
Joel  did  depart,  contrary  to  the 
condition;  wherefore,  &c. 

Buck,  for  the  defendants  plead  a  very 
lengthy  plea  in  bar,  the  substance  of  which 
was,  that  after  the  execution  of  said  bond, 
viz.  on  the  2(Jth  day  of  June,  1789,  the  said 


14 


N.  CHIPMAN'S  REPORTS. 


(Orange  Co. 


Joel  Ely  made  application  to  Elias 
*15  Weld,  one  of  the  judges  of  the  *county 

court,  for  said  county,  who  thereupon 
issued  his  citation  for  the  said  Paine  to  ap- 
pear at on before  Elijah  Rob- 
inson, one  of  the  judges  of  the  county  court, 
for  said  county,  and  John  Weld,  esq.,  justice 
of  the  peace:  to  shew  cause  why  the  said 

Plea  that  the  ^oe^  snol|ll1  not  ue  admitted  to 
prisoner,  one  of  the  insolvent  debtor's  oath; 
an*  "T  Ee  w^~  which  citation  was  regularly 

discharged  un-  served,  &c.      That  on   

at  -     —  the  said  E.  R.  and 
and          J.  W.  proceeded  to  examine  the 
gaolers.  gaj,j  JQ^  an(j  djtl  administer  the 

oath,  and  give  a  certificate  thereof  agreeably 
to  the  Statute  in  such  case  made  and  pro- 
vided— That  the  said  Joel  thereafter  remained 
within  the  said  prison  and  the  liberties  there- 
of, for  the  space  of  twelve  hours — That  no 
provision  being  made  for  his  support, 
*16      as  directed   by  the  stat*ute,  he  de- 
parted— That  until  that  time  he  had 
kept  within  the  liberties  of  the  said  prison, 
according  to  the  condition  of  the  said  bond. 
To  this  there  was  a  demurrer 
and  joinder  in  demurrer. 
By  HUTCHINSON  and  JACOB,  for  the  plain- 
tiff, it  was  argued  that  the  statute  in  this 
case  has  erected  a  summary  ju- 
risdiction,  that  the  justices  de- 
rive their  authority  solely  from 
this  statute,  that  they  must  pursue  their  au- 
thority precisely  as  pointed  out  by  the  stat- 
ute, otherwise  the  whole  is  coram  nonjudice. 
The  statute  requires,  that  on  application  of  a 
debtor  confined,  &c.  to  two  Justices  of  the 
Peace,  one  of  whom  shall  be  Judge,  &c.  they, 
or  either  of  them,  shall  issue  a  citation  to  the 
creditor  or  creditors  at  whose  suit,  &c. 
*17      notifying  them  to  ap*pear  before  such 
Justices,  at  a  time  and  place  therein 
mentioned,  to  shew  cause,  &c.  that  the  cita- 
tion in  this  case  was  not  issued  by  the  Jus- 
tices, who  administered  the  oath,  or  either  of 
them — therefore  they  had  no  jurisdiction — 
One  set  of  Justices  are  not  empowered  by 
the  statute  to  convene  the  creditors  before 
another  set  of  Justices. 
Buck  for  the  defendants. 
The  statute,  as  it  provides  for  the  relief  of 
poor  debtors,  is  remedial,  and  ought  to  be 
construed  liberally : — E.  W.  had 
a  right  to  issue  a  citation ;  E.  R. 
and  J.  W.  are  such  Justices  as 
have  a  right  to  hear,  examine,  and  admin- 
ister the  oath.     There  cannot,  therefore,  be 
a   want  of  jurisdiction,  as  argued   by  the 

plaintiff's  counsel. 
*18  *It  is  likewise  a  case  against  bail, 
who  ought  to  be  favored — It  would  be 
hard,  that  either  bail  or  principal  should  be 
accountable  for  the  doings  of  the  Justices — 
Their  proceedings,  if  irregular,  ought  to  be 
reversed, — but  until  reversed,  ought  to  be 
deemed  valid — otherwise  sheriffs  and  gaolers, 
who  are  no  judges  in  this  matter,  may  also 
be  exposed.  It  was  also  insisted  "that  sucl 


Counsel  for 
defendants. 


Justices,"  in  the  statute,  does  not  mean  the 
same  Justices  who  issued  the  citation;  but 
similar  Justices — Had  it  intended  the  same 
Justices,  the  word  "aforesaid"  had  been  used. 
The  plaintiff's  counsel  in  reply. 

This  is  not  a  remedial  statute        counsel  for 
— If  it  gives  a  privilege  to  the      Plaintiff,  in 
deb'tor,  at  the  same  time  it  takes      reP'y- 
away  the  common   iaw  right  of  the 

reditor — It  is  a  *rule  that  all  summary      *19 
jurisdictions  must  confine  themselves 
strictly  to  their  powers — Neither  writ  of  error 
nor  certiorari  will  lie — If  advantage  cannot 
be  taken  of  the  irregularity  in  this  way,  the 

reditor  has  no  redress,  be  the  proceedings 
ever  so  illegal  and  unjust — They  therefore 
prayed  judgment  for  the  plaintiff. 

The  Chief  Justice  delivered 
the  unanimous  opinion  of  the       t£p«mrt. 

:ourt. 

The  statute  in  question  gives  a  privilege 
to  the  debtor,  in  derogation  of  the  common 
law  right  of  the  creditor — the 

•    ur      *    i.    u-  •          The  statute  is 

right  of  holding  the  debtor  in   in  derogation 
ustody  until  he  obtain   legal   of  the  common 
satisfaction.     This  privilege  is  * 
given  to  the  debtor,  not  for  his  own  sake,  but 
for  the  sake  of  the  public,  who  are  interested 
in  his  labour,  and  in  favour  of  human- 
ity— The  debt*or  does  not  demand  a      *20 
remedy  against  the  creditor  for  an  in- 
jury he  has  sustained — The  statute  is   not 
therefore  in  a  law  sense  reme-         it  is  not  in 
dial;  but  the  case  does  not  turn       a  law  sense 
on  this  point.     The  question  is       remedial, 
whether  there  has  been  any  fatal  irregularity 
in    the    proceedings  of    the  '  Justices — and 
whether  the  plaintiff  is  proper  here  to  take 
advantage  of  the  irregularity,  if  any. 

The  jurisdiction  of  the  justices,  in  the  case 
under  consideration,  is  in  derogation  of  the 
jurisdiction  of  the  common  law      -jhejurisdic- 
courts,  the  proceedings  are  sum-  tion  given  to 
rnary,    not    warranted    by  the  gVjgJjSg 
course  of  common  law  proceed-  be  taken' 
ings;  but  warranted  solely  by  8trictly- 
the  statute. — Blackstone  observes,  after  sir 
Edward  Coke,  that  "Particular       Black,  com. 
"jurisdictions,  derogating  from     vol.  3,  p.  35. 
"the  general  jurisdiction  of  the  courts 
"of  *common    law  are    ever    taken       *21 
"strictly,  and  cannot  be  extended  far- 
ther than  the  express  letter  of  their  priv- 
ileges will  warrant."     This  observation  is 
applicable  to  the  mode  of  proceeding  in  the 
case  under  condsideration,  as  well  as  to  the 
jurisdiction  of  the  Justices.     The  mode  is 
pointed  out  and  regulated,  not 
by  the  common  law,  but  solely  pj^edout  by 
by   the  statute;  and  must  be  the  statute 
strictly    pursued— A    different 
mode  cannot  be  adopted,  under 
pretence  of  its  being  more  convenient  for  the 
debtor,  or  for  the  Justices — This  would  be  to 
assume  an  arbitrary  power  not  warranted  by 
law.     In  this  case  there  has  been  clearly  a 
deviation   from  the  mode  prescribed — The 
words  of  the  statute,  so  far  as  relates  to  the 


N.  CHIP. 


Windsor  Co.) 


STATE  v.  MARSH. 


21 


present  question  are — "on  application 
*22  "to  two  *  Justices  of  the  Peace,  one  of 

"whom  shall  be  a  Judge,  &c.  they  or 

''either  of  them  shall  issue  a  citation  to  the 

"creditor  or  creditors  at  whose 

Words  of  the  «sujt  the  prisoner  is  confined, 
statute.  ^,  . 

"notifying  him  or  them  to  ap- 

"pear  before  such  Justices,  <fcc."  The  word 
"such"  is  here  a  relative,  refering  to  the  Jus- 
tices, to  whom  application  has  been  made, 
and  who  have  issued  the  citation,  and  has 

precisely  the  meaning  of  this 
tices,"Cmeans  expression  "the  same  Justices, 
the  same  jus-  "to  whom  application  shall 

"have  been  made  as  aforesaid." 
In  the  same  sense  the  word  occurs  not  less 
than  ten  times  in  this  paragraph. 

Absurdity  of  To  Sive  it;  the  construction 
the  other  con-  contended  for  by  the  defendant's 
atruction.  counsel,  would  run  the  statute 

into  absurdity  and  nonsense — thus. 
*23  "On  application  *to  two  Justices,  &c. 
"they,  or  either  of  them,  shall  issue  a 
"citation  to  the  creditor  or  creditors,  &c.  to 
"appear  before  some  suchlike  Justices,  &c. 
"  which  citation  shall  be  served  on  some  such- 
like creditor  or  creditors,  at  least  twenty 
"days  before  the  time  of  appearance  in  some 
"suchlike  citation,"  &c. — It  is  clear  from  the 
statute  that  E.  W.  had  no  power  to  issue  a 
citation  to  the  creditor  to  appear  before  any 
Justices,  of  whom  he  was  not  to  be  one. — 
This  jurisdiction  is  not  incident 
"in-  to  the  office  of  Justice,  but  is 
cident  to  the  given  by  the  statute  to  those,  to 
ice'  whom  application  is  made.  It 
might  have  been  given  to  any  other  class  of 
men,  as  for  instance,  to  any  two  Freeholders, 
to  whom  application  shall  be  made. — 
*24  Had  that  been  the  case,  no  one  *would 
have  thought,  that  one  Freeholder 
might  have  cited  the  creditor  to  appear  be- 
fore other  Freeholders. 

The  consequence  is,  that  the 
proceedings  of  E.  R.  and  J.  W. 
are  wholly  irregular. 
The  only  remaining  point  is,  whether  the 
plaintiff  is  proper  to  take  advantage  of  such 
irregularity  here,  before  reversal. 

"There  is  great  difference  between  erro- 

"neous  process,  and  irregular  (that  is  void) 

"process;  the  first  stands  valid 

parsmiT™6'      "and  good,  until  it  be  reversed; 

Lloyd.  '  "the  latter  is  an  absolute  nullity 

345f8Ckc  Rep'  "from  t»e  beg'nning  5  the  parly 
"may  justify  under  the  first, 
"until  it  be  reversed;  but  he  cannot  justify 
"under  the  last,  because  it  was  his  own 
"fault  that  it  was  irregular  and  void  at 

"first." 

*25          *The  citation  was  irregular  —  the 
whole  proceedings  are,  therefore,  void 
from  the  beginning,  and  do  not  stand  in  the 
plaintiff's  way    Beside,  there  is 
no  mode  of    reversal    in   this 
case. 

The  bondsman  is  entitled  to  no  particular 
favour — he  has  engaged  against  the  default 

N.  CHIP. 


. 

are  irrtjjuiar. 


of  the  principal — to  admit  any 

excuse   for  him,  which    would   morefe,Your 

not  equally  avail  the  principal,   than  lhe  prin- 

would  be  to  deprive  the  sheriff,   clpaL 

or  the  creditor,  of  their  indemnity. 

As  to  the  principal — every  man  who  pro- 
cures a  process  (or  indeed  any 

,.r        ,,v     ,.       ..     j.J       See  the  above 

proceeding  at  law)  in  his  fa-  case  of  Parsons, 
vour,  must  see  that  it  be  reg-  versus  Lloyd, 

.,  °     in  nne. 

ular,  at  his  peril. 

There  must  therefore  be 
JUDGMENT  for  the  Plaintiff". 


*OLIVER  vs.  CHAMBERLAIN.    Sheriff.      *26 
(Orange,  Dec.  adj'd  term,  1789.) 

Escape  on  mesne  process,  for  suffering  one 
Gile,  arrested  at  the  suit  of  Oliver,  to  go  at 
large — On  not  guilty,  it  appearing  that  Gile 
had  absconded  and  was  insolvent,  the  jury 
found  for  the  plaintiff  his  whole  debt  in  dam- 
ages. 

Before  the  court  rendered  judgment,  they 
directed  the  plaintiff  to  enter  into  a  rule,  that 
the  defendant,  Chamberlain,  should  have  the 
benefit  of  the  judgment,  which      2  Ld  Raymt 
had  been  obtained  against  Gile,   uii.  Powei, 
the  defendant  indemnifying  the  vs-  Hord- 
plaintiff  from  cost;  which  was  done  accord- 
ingly— and  judgment  was  rendered  for  the 
plaintiff,  for  the  whole  of  his  debt. 


*PARKEK  vs.  PARKER.  *27 

(Windsor,  Dec.  adj'd  term,  1789.) 
Petition  for  Divorce. 

Exception    was   taken,  that      citation  ln  a 
the  citation  in  this  case  was  not  petition  for  a 
signed  by  a  Judge  of  this  Court,   ^Eedby 
but  by  a  Justice  of  the  Peace.       a  Judge  of  the 
Petition  dismissed.  court. 


*STATE  OF  VERMONT  vs.  JOHN      *28 

MARSH,  esq. 
(Windsor,  Dec.  adj'd  term,  1789.) 

This  was  an  indictment  against  the  de- 
fendant, John  Marsh,  for  assaulting  Joseph 
Marsh,  constable  for  the  town  indictment 
of  II.  in  the  execution  of  his  for  opposing 
office,  and  rescuing  a  horse  taken  a  constable- 
by  distress  on  a  warrant  for  taxes. — The  de- 
fendant plead  the  general  issue,  not  guilty. 

For  the  defendant  it  was  in- 
sisted that  Joseph  Marsh  was  theSta'pLe 
not  legally  appointed  to  the  of-  was  not  legally 
lice  of  constable— T lie  votes,  as   ° 
it  appeared  in  evidence,  for  this  and  other 
officers  chosen  at  their  annual      That  he  was 
town  meeting,  being  given  in  chosen  by  votes 
to  the  Clerk,  visa  voce,  which  *lven  vivavoce 
had  been   their   usual   mode  —  whereas   by 
the  31st  section  of  the  Constitution 
*of  this  State,  "All  elections,  whether       *29 
by  the  people,  or  in  the  General     Tlmt  he  OHRht 
Assembly,  shall  be  by  BALLOT,  to  have  i>een 
free  and  voluntary." 

The  Chief  Justice,  in  his  charge  to  the 


29 


N.  CHIPMAN'S  REPORTS. 


(Windsor  Co. 


Jury,  gave  his  opinion  on  this 
point,  in  which  the  other  Judges 
fully  concured. 
Whether  the  clause  in  the  Constitution  in- 
sisted on  for  the  defendant  extends  to  the 
choice  of  officers  in  towns  and  lesser  corpora- 
tions, must  be  determined,  1st.  by  consider- 
ing the  subject  matter;  and  2d.  by  compar- 

The  3ist  sec-  *n&  ^  w*tn  °tner  parts  of  the 
tiouofthecon-  Constitution.  The  framers  of 
not^exten^to  *ne  constitution  were  forming 
the  election  of  a  plan  for  the  general  govern- 
towu  officers.  ment  of  the  State.  They  do  not 
appear  to  have  had  an  eye  to  the  internal 

regulation  of  lesser  corporations.  In 
*30  this  section  they  point  out  the  mode  *of 

electing  the  officers  to  the  general  gov- 
ernment, and  in  this  view  they  confine  it  to 
elections  by  the  people  and  General  Assembly. 
"The  People,  "here  means  the  collective  body 
of  the  people,  who  have  a  right  to  vote  in 
such  elections — and  is  used  as  synonymous 
to  "Freemen." 

The  word  "Election,"  when  the  choice  is 
to  be  by  the  people  or  freemen,  is,  in  every 
part  of  the  Constitution,  used  in  the  same 
appropriate  sense;  as  in  the  7th  section,  "In 
order  that  the  Freemen  of  this  State  may 
enjoy  the  benefit  of  elections  as  equally  as 
may  be,  each  town  within  this  State  may 
hold  elections  therein" — For  what  purpose? 
for  the  choice  of  Representatives. — In  the 
10th  section,  "On  the  day  of  election  for 

choosing  Representatives,"  &c. 
*31          *I  am,  therefore,  clearly  of  opinion, 

that  the  31st  section  of  the  Constitu- 
tion  does    not  extend   to  the 
The  above  ?ec-    ,     .  ,.,  .    . 

tion  to  be  laid     choice  of  town  officers,  and  is 

out  of  the  pres-  to  be  laid  wholly  out  of  the  case 
cut  case.  J . ,       , . 

under  your  consideration. 

The  Jury  found  the  defendant  Guilty. 


*32      *STATE  OF  VERMONT  vs.  MATHER. 

(Windsor,  Dec.  adj'd  term,  1789.) 
Indictment   for  Burglary,  —  for  breaking 
and  entering  the  house  of  —     —  at  -  , 
on  -  ,  between  the  hours  of  twelve  at 
night,  and  nine  of  the  evening  succeeding. 

On  demurrer,  exception  was 

takCn  t0  thC  indictment  for  want 

quashed  for  of  a  noctanter;  that  it  was  un- 
certain,  from  the  indictment, 
whether  the  facts  were  com- 
mited  by  night  or  by  day  —  and  of  this  opinion 
were  the  Court,  and  quash'd  the  indictment. 


noctanter* 


*33      *- 


—  ex  dem.  GIDEON  CHAPIN  vs. 

A.  SCOTT. 

(Windsor,  Dec.  adj'd  term,  1789.) 
Ejectment  for  lands  in  Weathersfield. 
if  plaintiff  in      ^  was  objected,  that  the  plain- 
ejectment   de-  tiff  had  proved  a  title  to  no  more 
vho'ie'ylt  he     than  tnree  fourths  of  the  lands 
may  recover       in  question;  that  as  he  had  de- 
for  a  part.          manded  the  whole,  he  had  failed 


in  his  proof.  But,  by  the  Chief  Justice,  and 
agreed  by  the  Court — In  ejectments  the  plain- 
tiff shall  recover  according  to 
his  right — if  the  whole  be  de-  Den  ex'deni 
manded,  the  jury  may  find  for  Burges,  vers. 
a  moiety,  and  it  is  good. 


Purvis,  et  al. 


Substance  of 
the  bill. 


*D.  MORRISON  &  P.  FREEMAN  vs.  W.      *34 
SHATTUCK,  J.  BOND,  R.  RICE,  and 
A.  SAWYER. 

(Windsor,  Dec.  adj'd  term,  1789.) 

In  chancery. 

This  was  a  Bill  in  Equity,  setting  forth, 
that  in  the  year  of  our  Lord  1752,  W.  Will- 
iams, esq.  of  Pittsfield,  in,  &c.  by  virtue  of  a 

deed  duly  executed  by  • 

Coates,  now  of  —  — ,  the  orig- 
inal proprietor,  was  seized  in  his 
demesne,  as  of  fee,  of  and  in  the  right  No.  1, 
in  Halifax,  in  the  State  of  Vermont— That 
in  the  same  year,  the  said  W.  Williams,  by 
deed  under  his  hand  and  seal,  duly  executed, 
conveyed  the  right  No.  1,  to  Hugh  Morrison, 
of  —  — ,  now  deceased — That  from  the 
time  of  the  said  W  Williams's  said 
*purchase,  until  the  year  1783,  he  was  *35 
possessed  of  a  good  deed  from  the  said 
Coates  to  himself,  of  the  same  right — That 
on  the  15th  day  of  May,  1754,  the  said  Hugh 
Morrison,  by  deed  under  his  hand  and  seal, 
duly  executed,  conveyed  the  said  right  to 
John  Morrison,  then  of  -  — ,  who,  on  the 
29th  day  of  Feb.  1788,  by  deed  under,  &c. 
conveyed  the  said  right  to  your  orators  (ex- 
cept 100  acres  on  the  west  side  of  said  right.) 

And  the  said  orators  further  shew,  that 
the  deed  from  the  said  Coates  not  being  re- 
corded, William  Shattuck,  of  —  — ,  in  April 
1783,  by  misrepresentation,  obtained  it  from 
the  said  W.  W.— that  the  said  W.  S.  know- 
ing that  the  said  H.  M.  had  a  deed  from 
the  said  W.  W.  and  the  said  J.  M.  from  the 
said  H.  M.  of  the  said  right  No.  1, 
*with  an  intent  of  defrauding  the  said  *36 
J.  M.  for  a  trifling  consideration,  on 
the  26th  day  of  June,  1783,  obtained  a  deed 
from  the  said  Coates  to  himself,  and  gave  up 
to  the  said  Coates  the  deed  given  to  the  said 
W.  W.  as  aforesaid — the  said  Coates  being 
then  incapable  of  transacting  business — And 
the  said  orators  further  shew,  that  the  said 
W.  S.  afterwards  sold  the  said  right  No.  1, 
to  Jonas  Bond,  of  G.  who  in  September,  1786, 
sold  200  acres,  part  of  said  right,  to  Reuben 

Rice  and  William  Rice,  of ;  and  the 

first  day  of  March,  1787,  the  said  J.  B.  sold 
50  acres,  part,  &c.  to  James  Knap,  and  in 
December,  1787,  sold  the  remainder  to  Abner 
Sawyer  of . 

That  the  said  J.  K.  claims  no  part  of  the 
right  conveyed  to  the  orators. 

*That  the  said  R.  R.  W.  R.  and  A.       *37 
S.  had  brought  an  action  of  ejectment 
for  the  said  right,  against  the  orators,  which 
is  now  depending,  and  that  they  are  without 
remedy,  save  in  this  Court,  &c. 

They,  therefore  pray  an  injunction  to  stay 

N.  CHIP. 


Addison  Co.) 


STODDARD  v.  ALLEX. 


37 


proceedings  at  law, — that  the  said  deed  from 
€oates  to  W.  S.  may  be  set  aside,  and  the 
said  R.  R.  W.  R.  and  A.  S.  may  he  ordered 
to  release  to  the  orators,  or  grant  such  other 
relief,  &c. 

Three  defend-        To  which  kill  the  defendants 

ants  demur.       W.  R.  It.  R.  and  A.  S.  demur- 
red, not  confessing,  &c. 

Fourth  defend-  ,  ^.  Shattuck  the  other  de- 
ant  demurs  fendant,  also  demurred  sev- 
seperately.  erally. 

The  defendants  W.  It.  R.  R.  and  A.S.  were 

first  heard  on  the  demurrer. 
*38  *For  these  defendants,  it  was  in- 
sisted, that  by  the  plaintiff's  own  shew- 
ing, thedefendants  have  not  been  guilty  of  any 
fraud— they  have  purchased  the  title,  bona 
fide,  without  notice  of  any  equity  in  an- 
other. 

Counsel  for  At  the  time  of  their  purchase, 
the  three  de-  there  was  no  pretence  of  right 
in  the  plaintiffs,  who  have  since 
purchased,  and  revived  a  dormant  claim. 
The  persons,  under  whom  the  plaintiffs  claim, 
were  negligent  in  not  recording  the  title 
deeds.  Whatever  equity  H.  M.  might  have 
had  against  W.  S.  yet  neither  H.  M.  or  the 
present  plaintiffs  could  have  any  against 
these  defendants. 

For  the  plaintiffs  it  was  urged, 

that  the  Court  wil1  assist  in 
mending  defective  conveyances, 

and  even  supply  a  deed  that  has  been 
*39  destroyed.  It  is  immaterial  what 

parties  are  concerned;  its  being  sold 
by  W.  S.  can  make  no  difference.  It  might 
have  passed  through  several  hands,  before 
W.  Shattuck's  fraud  was  known.  The  vendee 
cannot  be  in  a  better  situation  than  the  ven- 
dor. The  title  of  W.  S.  being  void  by  reason 
of  fraud,  the  subsequent  or  derivative  titles 
must  likewise  be  void. 

Per  Cur: 

These  defendants  are  set  up  in  the  bill  to 
have  purchased  of  "W.  S.  they  are  not  charged 
with  fraud  personally,  or  even  with  notice  of 
the  title,  under  which  the  plain- 
Wo5?iey"tai.  tiffs  claim— They  are  therefore 
assignees  of  to  be  taken  to  be  bona  fide  pur- 

fln«ler  vs.  De-       p}i>i<*pr<<  without    noti^p It   Irm 

mattos  &  Slader.     "<lst   »  W1W1OIU   nouc< 

been  long  settled,  that  if  A  sells 

to  B,  who  forgets  or  neglects  to  regis- 
*40  ter  his  deed,  and  C,  knowing  *the 

same,  purchases  the  same  land  from  A, 
and  first  registers  his  deed,  and  sells  to  D, 
who  purchases  bona  fide  for  a  valuable  con- 
sideration, without  notice  of  B's  right;  U 
shall  not  be  affected  by  C's  notice,  but  he 
shall  hold  against  i!. 
Bill  dismissed  The  bill  as  to  the  defendants 

as  t<>  the  3  de-  \y.  It.  It.  It.  and  A.  S.  must  be 
fendante.  with     ,.       •        ,       ...  ... 

cost  RKHinstthe  dismissed,  with  costs  against  the 
plaimitis.  plaintiffs. 

4th  defend-  For  the  defendant  W.  8.  it  was 
ant's  counsel.  HrgIUHjf  that  the  plaintiffs,  at 
the  time  of  the  fraud  ailed  ged,  owned  noth- 
ing; they  are  to  be  considered  as  purchasers 
of  a  mere  equity,  which  will  not  entitle  them 

N.  CHIP. 


to  maintain  this  action — that  neither  were  in 
fact  in  possession. 

For  the  plaintiffs  it  was  said,  Plaintiffs 

that  any  subsequent  purchaser        counsel, 
had  a  right  to  disencumber. 

*Per  Cur :  *41 

The  plaintiffs  do  not  stand  in  the  place 
of  heirs  or  representatives  of  H.  M.  H.  M. 
had  been  defrauded  of  his  title  to  the  land  in 
question;  after  which,  and  with  notice  (since 
it  is  not  denied,  and  they  are  supposed  to 
make  the  best  of  their  own  case)  the  plain- 
tiffs have  purchased.  The  injuiy  was  not 
done  to  them — they  have  no  right  in  their 
own  names,  to  a  remedy  in  this  suit. 

The  bill,  as  to  the  defendant 
W.  S.  was  dismissed,  but  with-  .?%£?«? 

OUt  COSts.  defendant,  but 

Judge  Knight,  did  not  sit  in  without  costs- 
this  case,  having  been  of  counsel  for  the  de- 
fendants. 


*HAVENS  vs.  GRIFFIN. 


*42 


(Windham,  Dec.  adj'd  term,  1789.) 

The  declaration  consisted  of  two  counts, 
1st.  on  an  order  accepted;  2d.  for  money  had 
and  received. 

It  appeared  in  evidence,  that  at  , 

on  —  — ,  the  plaintiff  and  defendant,  and 
one  Sever,  were  in  company — The  plaintiff 
was  endeavouring  to  pi-ocure  payment  on  a 
small  note,  which  he  held  against  Sever.  The 
defendant  said,  "Get  an  order  on  me,  and  I 
will  pay  it."  Sever  drew  an  order  on  G.  the 
defendant,  for  the  amount  of  the  note,  and 
H.  the  plaintiff,  gave  up  the  note.  H.  then 
turned  to  G.  and  said,  "Here  will  you  pay  it?" 
G.  replied,  "Give  me  the  order" — took 
it,  and  wrote  on  it,  that  he  *would  *43 
pay  it,  when  he,  (G.)  should  collect  so 
much  of  one  Taylor,  against  whom  he  had  a 
demand  in  favour  of  Sever.  H.  said,  it  was 
not  the  agreement.  G.  said,  "It  will  not  hurt 
you."  For  G.  it  was  insisted,  that  he  was 
bound  by  the  written  acceptance  only;  and, 
as  he  had  collected  nothing  of  Taylor,  he  was 
not  bound  to  pay. 

But  the  Court  held,  that  G.  was  bound  by 
his  agreement  to  pay  uncondi- 
tionally; that  he  could  not,  aft-  toA"  y^To^deJ 
erwards,  accept,  to  pay  in  a  dif-  to  be  drawn, 
ferent  manner,  or  on  contin- 
gency. 

Accordingly,  there  was  a 
Verdict  for  the  plaintiff. 


*DAIUUS  STODDARD  vs.  LKVI  ALLEN.  *44 
(Addison,  Aug.  term,  1790.) 

Debt  on  a  judgment  obtained  by  D.  S. 
against  L.  A.  by  default,  in  the  county  of 
Litchlield.  and  state  of  Connecticut. 

There  was  1st.  a  plea  of  nil  dcbet;  2d.  an 
offset. 

The  Court  (Judges  Smith  and         ,  Foreign 

t-    •    i  •.  \          i  v      ii  Judgment 

Knight  on  the  bench)  allowed        impeached. 


44 


N.  CHIPMAN'S  REPORTS. 


(Windham  Co. 


the  defendant  to  impeach  the  original  judg- 
ment, so  far,  as  to  shew,  that  more  was  re- 
covered than  was,  in  fact,  due. 

N.  B.     This  goes  no  further  than  foreign 
judgments  on  default. 


*45 


*SELECTMEN  OF  BENNINGTON  vs. 

M'GENJJES. 


(Bennington,  Aug.  term,  1790.) 
Indebitatus  assumpsit,  for  money  laid  out 
and  expended. 

Non  assumpsit  pleaded. 
Actiou  to  re-       Ifc  appeared  in  evidence,  that 
rover  back  mon-  in  the  year  -  ,  the  defendant 


was  resident  at  Bennington, 
relief  of  a  pau-  but  not  an  inhabitant.  The  de- 
Per-  fendant,  his  wife  and  two  or 

three  children  were  taken  sick,  and  in  very 
distressed  circumstances,  being  poor  and  un- 
able to  provide  for  themselves;  the  selectmen 
of  Bennington  provided  for  them  as  paupers, 
and  advanced,  for  their  relief,  the  sum  de- 
manded in  the  declaration.  The  wife, 
*46  and  one,  or  *more  of  the  children,  died 
—  the  defendant,  on  his  recovery,  re- 
moved out  of  the  state  —  returning  afterwards, 
on  business,  the  present  action  was  brought. 

A  motion  was  made,  that  one  of  the  plain  - 

One  of  the  tiffs»  a  selectman,  might  be 
piaiutiffs  in  the  sworn,  to  prove  a  special  agree- 
man  uof^d-  ment  of  the  defendant  to  repay. 
mitted  as  a  wit-  By  the  Court  —  He  cannot  be 
uess.  admitted. 

Charge  to  the  The  Chief  Justice,  in  his 
Jury.  charge  to  the  Jury,  observed. 

™i  „„«!««  »=       That  this  was  an  action,  the 

This  action  Is  •,  •     ,        i_-   ,     ,       ,     j 

the  first  of  the     first  of  the  kind,  which  he  had 

kind.  ever  known;  an  action  brought 

by  the  town  against  a  pauper,  to  recover 

back  money  expended  for  his  relief.     There 

is,  in  this  case,  no  special  agreement  to  re- 

pay.    It  rests  on  the  general  implica- 

*47      tion  of  law  in  such  *cases.    As  the 

money  was  advanced,  if  the  law  im- 

plies, generally,  an  obligation  on  the  part  of 

it  rests  on  the  the  P»«per  to  repay  such  monies, 

general  impiica-  as  the  town  may  have  advanced 

for  his  relief  ;  then  the  plaintiffs 

ought  to  recover.     This  may  be  gathered 

from  the  intention  of  the  law,  in  the  provis- 

ion made  for  the  relief  of  the  poor. 

The  provision  made,  by  law, 

for  the   relief  °f  tlle  POO1>  is»  in 

the  poor,  is  a  my  opinion,  a  charitable  pro- 
Pr°"  vision-  To  consider  it  in  any 
other  light,  detracts  much  from 
the  benevolence  of  the  law,  and  casts  a  reflec- 
tion on  the  humanity  of  the  richer  part  of 
the  community.  Poverty  and  distress  give 
a  man,  by  law,  a  claim  on  the  humanity  of 
society,  for  relief;  but  what  relief,  if  the  town 

have  a  right  immediately,  to  demand 
*48  repay*ment?  And  to  imprison  the 

pauper  for  life,  in  case  of  inability  to 
pay  ?  This,  instead  of  a  relief,  would  be  adding 
poignancy,  as  well  as  perpetuity  to  distress. 


nopromise 


If  this  be  so,  certainly  the  law 
raises  no  promise. 

Verdict  for  the  defendant. 

August  term,  1791.     On  a  review,  the  de- 
fendant again  had  a  verdict. 


*DAVID  LYON  vs.  JOSEPH  IDE.      *49 
(Windham,  Aug.  term,  1790.) 

The  plaintiff  declared,  as  assignee  of  the 
Sheriff  of  Windham,  on  a  bond  given  to  the 
Sheriff  by  the  defendant,  in  the 
penalty  of  £200,  that  if  one  piveVto  the 
Joseph  Bullen,  then  a  prisoner  sheriff  of  w. 
confined  for  the  plaintiff's  debt,  p/iainer"!^ * 
should  behave  as  a  good  orderly  the  liberties 
prisoner  ought  to  behave,  and 
should  pay  to  the  Gaoler  one  shilling  and  six- 
pence per  day  for  his  victualing,  and  pay  the 
Gaoler's  fees,  and  not  depart  said  prison 
without  the  leave,  and  liberty  of  the  Sheriff, 
then,  &c. 

*There  were  three  several  pleas  in  *50 
bar,  by  Bradley,  for  the  defendant. 

To  the  first  and  third  pleas 
there  was  a  traverse  and  issue —  bond8 was  taken 

to    the    Second   Which    for   SUb-    by  the  Sheriff  ia 

stance  was,  that  the  bond  was  Wsown  wiong, 

ii         c      i   ii-        ±1,         -j  -r>    11         colore  omen, 

taken  for  letting  the  said  Bullen  for  matters 
to  the  liberties  of  the  prison —  other  than  the 

i      xi     01      -J*  law  allows. 
that  it  was  taken  by  the  Sheriff 

in  his  own  wrong,  colore  officii,  for  other 
things  than  the  law  allows,  viz.  for  the  prison- 
er's good  behaviour,  for  his  diet,  and  to  secure 
the  Gaoler's  fees,  and  that  he  should  not  de- 
part without  leave  of  the  Sheriff,  &c.  there 
was  a  demurrer,  and  joinder  in 
demurrer. 

The  demurrer  was  argued,  by  Bradley,  for 
the  defendant,  and  by  brother  Knight,  for 
the  plaintiff. 

After  consideration,  the  Chief  Justice  de- 
livered the  opinion  of  the  Court. 

*This  is  an  action  on  a  bond  taken  by      *51 
a  Sheriff  in  the  execution  of  his  office, 
for  letting  a  prisoner,  confined  in  gaol  for 
debt,  to  the  liberties  of  the  gaol- 
yard,  under  the  statute  regulat-       $£$$££  °f 
ing  gaols  and  gaolers,  and  by 
the  sheriff  assigned  to  the  plaintiff,  the  orig- 
inal creditor. 

As  the  bond  and  condition  are  inserted  at 
large  in  the  declaration,  and  as  the  final  re- 
covery, in  this  action,  will  depend  on  the 
legality  of  the  bond,  it  will  be  unnecessary  to 
consider  the  defendant's  plea: 
For,  on  this  demurrer,  if  the  tnrn/on'the  fcs 
declaration  be  not  good,  or  in  gall*,y  of  the 
other  words,  if  the  bond  be  ille- 
gal, the  plaintiff  cannot  recover  in  this  ac- 
tion; and  nothing  is  disclosed  in  the  defend- 
ant's plea,  but  what  is  apparent  on  the  face 
of  the  declaration. 

*A  person,  acting  in  his  private  ca-      *52 
pacity,  may  annex  what  conditions  he 
pleases,  to  his  agreement;  so,  that  they  be 
not  mala  in  se,  or  prohibited  by  some  positive 


Demurrer. 


N.  CHIP. 


Kit 


Windham  Co.) 


CLARK  v.  CAMPBELL. 


52 


law:  But  a  person  acting  under 

ingb^vi?rtueCof  authority  must  pursue  that  au- 
an  authority,  thority ;  nor  can  lie  act  by  virtue 
thafamhoiity  °^  *"s  authority,  and  in  his  pri- 
vate capacity,  in  the  same  in- 
strument. I  however,  at  present,  extend 
this  no  farther,  than  to  ministerial  officers  of 
the  law.  Any  person,  imprisoned  for  debt, 
may  be  admitted  to  the  liberties  of  the  gaol- 
Theendof  yard'  on  Procuririg  sufficient 
the  bond,  is  bonds,  to  indemnify  the  Sheriff 
only  to  indem-  — that  is,  to  indemnify  him 

nify  the  Sheriff.     .  ,  .   ,        .    .  , 

tfgamst  an  escape,  which  might, 
in  such  case,  be  made:  for  a  prisoner,  admitted 
to  the  liberties,  can  escape,  when  he  pleases. 
The  law  cannot  mean,  in  this  case,  to 
*53      indemnify  the  *Sheriff,  or  the  Gaoler, 
who  is  his  deputy,  for  any  thing  fur- 
nished the  prisoner  on  a  private  agreement. 
Neither  the  Sheriff,  nor  the 

The  prisoner     ~      •>  i_i-  *         •   i 

IB  not  obliged  Gaoler  are  obliged  to  furnish 
to  take  i,  is  diet  prisoners  with  diet;  nor  is  the 
prisoner  obliged  to  receive  his 
diet  from  them,  or  either  of  them.  So  far 
from  this,  that  the  statute  before  mentioned 
expressly  declares,  that  all  prisoners  shall  be 
allowed  to  provide,  and  send  for  the  neces- 
sary food,  from  whence  they  please. 

Bonds  for  ^°  °fficer  can  De  allowed  to 

ease  or  favour    take  a  bond,  or  any  reward,  for 
not  allowed.        ease<  Of  favour>  other  than  such 

as  are  expressly  allowed  by  law.    Such  a  prac- 
tice, were  it  to  obtain,  would  open  a  wide 
door  to  extortion,  and  the  most  grievous  op- 
pression; and  an  officer  is  clearly  pun- 
*54      ishable,  who  shall,  *under  color  of  his 
office,  and  for  doing  that,  which  the 
law  obliges  him  to  do,  as  to  take  bail,  &c. 
take   monev  from  a   prisoner, 

Officer    pun-       .,          .,        *  ,        ,     ^ 

ishnbie  for  tak-   other  than  legal   fees,  or  any 
ing  more  than  service,  either  for  his  own  ben- 
efit, or  that  of  a  third  person; 
Agreements     and  «veI7  agreement,  extorted 
for  such  pur-   for  such  purposes,  must  be  ille- 
posevoid.          gal  and  void. 

This  bond  is       The  bond  under  consideration 
grosiy  oppress-   is  of  the  same  nature,  and  is 
grosly  oppressive.   There  is  not 
one  word  about  indemnifying  the  Sheriff — 
the  only  thing  required  by  the  statute.     In- 
it  binds  the     stead  of  that,  lie  is  first  bound 
prisoner  to  his    to    his    good    behaviour — and 
good  behaviour.  though  j,e  oughtto  behave  well, 
the  sheriff  had  no  right  to  demand  it  of  him 
To  pay  the       under  a  penalty.    2.  He  is  bound 
Gaoler  i»6  p«r     to  pay  the  Gaoler  1$6  per  day  for 
day  for  his  diet.  his  victualing,  a  most  extrav- 
agant price  in  this  country.     This  is 
*55      directly  in  *face  of  the  statute,  as  it  is 
a  means  of  obliging  the  prisoner  to  take 
his  food  of  the  Gaoler  only.    3.  He  is  obliged 
to  pay  the  Gaoler's  fees.     The 
fees.      Gaoler,  who  took  this  bond  in 
the  sheriff's  name,  had  a  right, 
it  was  not      if  fees  were  due,  to  take  secu- 
SmKsecure    rity  for  their  payment;  but,  if 
payment  for       IK;  agreed  to  wait,  and  take  them 
at  a  future  day,  it  was  a  private 


concern,  which  ought  not  to  have  been  put 

into  this  bond,  taken  officially — He  might  as 

well  have  taken  security  for  any  other  debt, 

in  the  same  way.    4.  He  is  bound 

not  to  depart  without  leave  of  bo^™0etrto 

the  sheriff — the  sheriff   is  au-  depart  without 

thorized  to  detain  the  prisoner,   ^fe^lfff  Uie 

untill  he  pay  and   satisfy  the 

debt,  for  which  he  stands  committed,  and 

lawful  fees.     When  he  has  done  that,  though 

in  close  confinement,  he  may  demand 

his  liberty,  and  *if  not  presently  set      *56 

at  large,  an  action   lies   against   the 

sheriff;  and  yet,  in  such  case,  if  this  bond  be 

good,  should  he  depart  without 

f  j.i         v.      -A    i      £     c  -t,          He  need  not 

leave  of  the  sheriff,  he  forfeits  Wait  the  siur- 

£200.     The  bond  is,  therefore,  ifrsme)aIJ'te  a^er 

totally  bad,  as   being    against  dtbFand  fees. 
law,  the  common  principles  of 

right ;  and,  in  every  view  highly  vers'ul'  Ma™- 

oppressive — The   consequence  ningham. 

.   re.,        ,     ,  ,  TJl«,..Ha,, 

is,  that  there  must  be 
Judgment  for  the  defendant. 


Plowdea. 


*CLARK  vs.  CAMPBELL. 


*57 


(Windham,  Sept.  term,  1790.) 

This  was  an  action  removed  into  this  court 
by  certiorari. 

Campbell,  the  plaintiff  below,  brought  an 
action  before  Mr.  Justice  Burt,  against  Clark, 
on  a  recognizance  for  the  sum  of  ten  pounds, 
conditioned  to  prosecute  a  certiorari,  formerly 
taken  out  by  Clark  against  Campbell,  and 
not  prosecuted.  An  exception  was  taken,  in 
the  court  below,  that  the  cause  exceeded  the 
jurisdiction  of  a  justice  of  the  Peace;  which 
was  over-ruled,  and  judgment  rendered  for 
£3:4:6. 

In  this  case  the  plaintiff  (below)  Campbell, 
declared  in  debt  for  £3:4:6,  setting  forth 
the  recognizance  for  £10.  with  *the      *58 
condition  to  prosecute  to  effect,  and 
answer  damages  and  costs,  &c.      Declaration 
and  avered,  that  his  costs  and  in  debt  on  a 
damages  amounted  to  £3:4:6.       -f/X^unfof 

To  this  there  was  a  demurrer,  101.  for  a  less 
and  joinder  in  demurrer. 

West  for  Campbell, 

Bradley  for  Clark. 

The  Chief  Justice  delivered  the  unanimous 
opinion  of  the  Court,  in  effect  as  follows: 

The  decision,  in  this  case,  will 
virtually  determine  whether  the      ^^"urt  °f 
Justice  had  jurisdiction  in  this 
cause — For,  if  the  plaintiff  below  can  sup- 
port a  declaration  in  debt,  fora  less  sum  than 
that  which  is  contained  in  the  recogni/anee, 
on  an  implied  covenant  in  the  condition  of 
the  recognizance,  the  action  will  come  with- 
in the  jurisdiction  of  a  Justice;  otherwise 
not. 

*It  is  said,  that  the  conusee  is  not       *5'J 
obliged  to  go  for  the  penalty,  but  may 
go  upon  a  covenant  implied  in  the  condition; 
and,  that  in  debt,  "  Id  ci-i-tnm  est  (jn<i<l  ctitunt 
reddi  potent" — that  is  certain,  which  is  re- 


N.  ( inr. 


59 


K.  CHIPMAX'S  REPORTS. 


(Windsor  Co. 


ducible  to  certainty. — That  the  costs  are  le- 
gal costs,  and  are  capable  of  ascertainment 
by  a  known  standard,  the  fee  bill.     But  this 
is  not  so — the  defendant  on  the  plaintiff's 
failing  to  prosecute,  is  entitled  to  be  paid 
for  his  time  spent  and  money  necessarily  ex- 
pended  in  preparing  for  his  de- 
goes  for  dam    fence.    The  damages  are  wholly 
ages,  they  are     at  large,  and  are  to  be  ascer- 
be  ascert'a'iiie'd    tai ned  by  assessm ent  (if  he  goes 
only  by  assess-   for  damages  only)  as  in  an  ac- 
tion for  an   escape  on  mesne 
process — debt  may  indeed  be  brought  on  an 
instrument,  which  does  not,  in  itself, 
*60      ascertain  the  sum  due;  *but,  in  that 
case,  there  must  be,  in  the  instrument, 
a  reference  to  some  other  instrument,  where 
the  sum  is  ascertained,  to  some  known  rule 
of  computation,  or  to  an  assessment  made  by 
Rule  in  debt    some  third  person  or  persons; 
where  he  sum    so,  that  when  the  instrument 
is  uncertain.       referred  to  is  produced,  the  rule 
applied,  or  the  assessment  shewn,  the  quan- 
tum of  the  demand  will  appear  the  same  to 
every  one.     We  do  not  say,  no 
in  d'ch^ou'the    action  can  be  brought  for  a  sum 
condition  can-    less  than  the  penalty;  but  we 
case  be  made      al'e  all  clearly  of  opinion,  that  a 
good  by  aver-    declaration  in  debt,  on  the  con- 
dition, cannot  be  made  good,  by 
any  reference,  or  averment  in  this  case — 
Therefore,  let  there  be 

Judgment  for  the  deft  Clark. 


*61 


*!VERS  ex  dem.  IVERS  vs.  T. 
CHANDLER. 


(Windsor,  Sept.  term,  1790.) 

This  was  an  ejectment  for  lands  in  Chester. 

UP  O"  trial,  Ivers.the  lessor,  de- 

title*1111  rived  a  title  by  deed,  from  T. 

Chandler,  sen.  dated  March  13th, 

1767.     T.  Chandler,  jun.  pro- 

Defendant's     duced  a  deed  of  the  same  land, 

from  T.  C.  sen.  dated  July  30th, 

1766.     There  was  endorsed  a  proof,  by  one 

of  the  witnesses,  before  a  Judge  Lord,  who 

had  long  been  in  a  state  of  insanity,  and  now 

is  dead. 

It  was  strongly  insisted,  that  the  deed  was 
a  forgery,  and  there  were  many  suspicious 

circumstances. 

*62          *It  farther  appeared  in  evidence, 

that  T.  C.  the  defendant,  was  present 

at  the  time  of  Ivers's  purchase, 

ceIiTgdainiU0en"  that  he  was  a  witness  to  his 

deed,  and  received  part  of  the 

pay  to  his  own  use. 

The  Court  directed  the  Jury,  that  if  they 
found  the  defendant  T.  C's.  deed  was  orig- 
inally made  bonafide,  yet  if  they  found  that 
the  defendant,  T.  C,  was  knowing  to  Ivers's 
purchase,  a  witness  to  his  deed,  received  part 
of  the  purchase  money,  and  fraudulently  con- 
Berrisford  vs.  cealed  his  own  claim,  they  ought 
not  to  allow  so  gross  a  fraud  to 
prevail  against  a  bona  fide  pur- 


chaser:  It  ought,  by  a  retrospect,  to  be  con- 
sidered as  originally  fraudulent,  and  designed 
for  an  imposition. 

The  Jury  accordingly  found 
for  the  plaintiff  to  recover. 


8 


*L.  R.  MORRIS  ex  dem.  LUDLOW  vs.     *63 

JOHN  GILL. 
(Windsor,  Sept.  term,  1790.) 

Ejectment  for  lands  in  Weathersfield,  orig- 
inally granted  to  H.  Wentworth. 

H.  W.  conveyed  to  G.  Alexan- 
der, the  9th  of  April  1767;  G.A.        tmeaintiff8 
to  Ludlow,  6th  of  June  1767. 
H.  W's  deed  to  G.  A.  proved  and  recorded 
May  12th,  1787,  and  also  the  deed  to  Ludlow, 
as  appeared  in  evidence  on  the  part  of  the 
plaintiff. 

On  the  part  of  the  defendant;  a  deed  was 
produced    from   H.   W.   to  E. 
Bean,  dated  28  Dec.  1780,  ac-      titD|.fendant'8 
knowledged,  and  recorded  soon 
after.    2d.  A  deed  from  E.  Bean,  to  Gill,  and 
others,  dated  Dec.  28,  1781,  acknowledged 
and  recorded. 

*It  was  proved  on  the  part  of  the      *64 
plaintiff,  that  Bean,  and  the  purchasers 
under  him,  had,  some  time  before  Bean's 
purchase  from  H.  W.  full  and 
repeated    notice    of    Ludlow 's      had^ioticTof 
title  from  H.  W.  through  Alex-      the  lessor's 
ander.  title' 

It  was  insisted,  that  by  the  statute  of  this 
state,  the  legal  title  was  in  the  vendees  of 
Bean,  as  his  deed  was  first  recorded. 

But  the  Chief  Justice,  in  his      charge  to  the 
charge  to  the  Jury,  gave  it  as  jury. 
his   opinion,   in   which  Judge 
Knight,  the  other  Judge  pre-  re 
sent,  agreed — that  though  Bean   be  postponed 
had  taken  advantage  of "the  le-  &™*™«j£ 
gal  form  required  by  statute,  in   lently  obtained 
first    registering   or   recording      ,  Burr  467 
his  deed;  yet  as  both  B.  and  his   Worseiey,  etai' 
vendees  had  notice  of  Ludlow's  gilJfe^vs^De- 
title,  which   was   an   equitable   u  attos  and 
one,  the  whole  is  fraudulent,  as  sla(ler- 
against  Ludlow — That    it    would   be 
mischievous  to  allow  such  *f  raudulent       *65 
acts  to  prevail  in  a  court  of  law,  only 
to  turn  the  parties  over  to  a  court  of  equity, 
where  they  would  be  immediately  set  aside. 

Fraud,  if  fully  proved,  inval-      Fraud  inval. 
idates  every  transaction,  as  well  i  '.ates  at  law, 
at  law  as  in  equity.    Nor  can  a   "q^^.1  as  in 
man  validate  a  fraudulent  act,      .,  gurr  gg_ 
by  bringing  it  under  the  letter  Bright,  exe  r  of 
of  a  statute,  any  more  than  un-  <Ey1,bjPnvs' 
der  the  letter  of  a  rule  of  the     ,, 

Fraud  cannot 

common  law.     Had  there  been  be  protected  by 
a  bonafide  sale,  in  this  case,  to  a  statute. 
third  persons,  without  notice,  it  might  have 
had  another  consideration. 
Accordingly  the  Jury  found 
for  the  plaintiff. 

N.  CHIP. 


Orange  Co.) 


BATES  v.  TUCKER. 


66 


*66 


*CONANT  VS.  BICKNELL. 


(Windsor,  Sept.  term,  1790.) 
Assumpsit  for  money  had  and  received  to 
the  use  of  the  plaintiff. 

Plea,  non  assumpsit. 

It  appeared  in  evidence,  that  the  plaintiff, 
a  sheriff's  deputy,  had  an  execution  against 
Bicknell,  in  favour  of  one  Woolston,  a  person 
residing  abroad.  The  defendant  counted  out 
the  money  to  satisfy  the  execution,  on  the 
table,  being  £3:18:8,  and  shoved  it  across  the 
table  to  Conant,  who,  thereupon,  endorsed 
the  execution  satisfied.  Upon  which  Bick- 
nell, immediately,  laid  his  hands  on  the 
*67  money,  and  turned  it  out  as  the  *prop- 
erty  of  Woolston,  on  an  attachment 
at  the  suit  of  Bicknell  against  Woolston,  and 
it  was  by  another  officer,  who  was  ready  for 
the  purpose,  attached  as  the  property  of 
Woolston. 

It  was  held  by  the  Court,  that  money,  col- 
lected by  an  officer  on  execution, 
on^nneeJec6uVtion  cannot  be  attached  out  of  his 
not  attachable   hands.    On  the  receipt,  the  offi- 

«n ohmcherllds °'  cer   becomes   »  .debtor  to  the 
plaintiff,  not  for  the  identical 
pieces  of  money,  but  for  the  sum. 
Verdict  for  the  Plaintiff. 


*68      *JOHN  RICH  vs.  JOSEPH  WAIT. 
(Orange,  Sept.  term,  1790.) 

This  was  an  action  of  Covenant  broken, 
brought  on  a  covenant  of  warranty  in  a  deed 
of  bargain  and  sale  of  a  tract  of  land  in  Maid- 
stone. 

On  trial  upon  the  general  issue,  no  eviction 
appeared — the  plaintiff  still  enjoys  the  land. 

It  was  held  by  the  Court,  that  an  action 

TO  support  an  will  not  lie  on  a  covenant  of 
action  on  a  cov-  warranty,  until  there  has  been 

euaiitoi  warran-  .    ..  ,.   .       , 

ty  there  must  an  eviction,  or  some  disturb- 
have  been  an  ance  or  hindrance  in  the  enjoy- 
dlsm'rba'nceTan-  ment,  which,  in  law,  may  be 
tamount.  equivalent  to  an  eviction. 

Verdict  for  the  defendant. 


*69      ""JONATHAN  BATKS,  ex  dem.  EDMUND 
SHATTUJCK  vs.  BENJAMIN  TUCKER. 

(Orange,  Sept.  term,  1790.) 
Ejectment  for  land  in  Randolph. 
The  demise  was  laid  the  6th  Sept.  1786,  to 
hold  for  the  term  of  60  years  from  the  5th  of 
Sept.  1786.     Ouster  the  26th  of  May,  1787. 
This  writ  was  dated  the  25th  of  June,  1788. 
On  trial,  the  plaintiff  proved 

counsel118'8  a  c'ear  ^^e  *n  m'8  l«8Sor>  °n  the 
6th  of  September,  the  date  of 
the  lease. 

On  the  part  of  the  defendant, 

coani«Sdant>8     *'  was  laoved  by  a  copy  from 
record,  that,  on  the  same  day, 
the  lessor  sold  the  land  in  question  to  the  said 
Jonathan  Bates. 

It  was  insisted  by  the  defendant's  coun- 

N.  CHIP. 


sel,  1.  That  the  lessor  *having  con-  *70 
veyed  on  the  same  day,  on  which  the 
lease  is  supposed  to  be  made;  and,  as  the 
lease  is  a  mere  fiction,  devised  at  the  time 
of  beginning  the  action,  which,  in  this  case, 
was  long  after  the  supposed  date,  or  time  of 
making  the  lease,  the  plaintiff  has  failed;  for 
though  the  lease  be  a  fiction,  yet  there  must 
be  a  real  subsisting  title  in  the  lessor  of  the 
plaintiff,  at  the  (supposed)  time  of  making 
the  lease,  and  also  at  the  time  of  bringing 
the  action. 

2.  In  this  case  had  there  been  an  actual 
lease  made  on  the  6th  day  of  September  1786, 
yet  the  lessor  having  conveyed  to  the  lessee, 
on  the  same  day,  in  fee,  the  lease  was 
merged  and  gone;  so  that  the  plaintiff  has 
not  supported  his  title,  in  the  way  he  has 
set  it  up. 

*The  counsel  for  the  plaintiff  in-  *71 
sisted,  that,  as  an  ejectment  is  in  form 
a  fiction,  designed  to  try  the  lessor's  title;  or 
rather,  to  put  the  real  owner  into  possession; 
it  is  sufficient,  if  it  can  by  any  intendment, 
be  made  to  answer  this  purpose.  As  the 
lease  is  laid  to  be  made  on  the  same  day  with 
the  deed  of  conveyance,  it  is  sufficient  to  in- 
tend, that  the  lease  was  prior,  on  the  same 
day;  and  such  intendment  ought  to  be  made 
in  support  of  the  plaintiff's  right.  As  to  the 
merger,  that  gives  the  plaintiff  a  real,  instead 
of  a  fictitious  title. — No  injustice  will,  there- 
fore, be  done,  should  he  recover 
— He  will  be  put  into  possession  th°$wnU  °f 

Of  his  own.  Iu  ejectment, 

But  the  Court  held,  that  the  <{^aeflctlon, 
lease,  though  a  fiction,  must,  must  by  possi- 
by  possibility  be  a  subsisting  ^jy  be^sub- 
lease,  at  the  time  of  bringing  "' 
the  ac*tion;  at  the  time  of  the  sup-      *72 
posed  ouster;  and  at  the  supposed  time 
of  making  the  lease — the  whole  is  under  the 
controul  of  the  lessor,  who  is      The  lessor  ia 
the  real  plaintiff.     He  is  con-   the  real  "piain- 
usant  of  his  own  title — to  that   tiff- 
he  must  at  his  peril  conform  his  declaration. 
He  must  set  forth  a  lease,  which 

....  -i-i-i      \  He  must  set 

might,  by  possibility,  be  a  good      forth  a  lease 
subsisting  lease,  at  the  time  of      which  mi^ht 

,.  ,     ,    ,  ,  .  be  goou,  ivc. 

the  supposed  date,  or  making 
of  the  lease;  at  the  time  of  the  ouster;  and 
at  the  time  of  bringing  the  action.     Hero 
there  is  a  merger — the  lease  is  united  to  and 
merged  in  the  fee — There  could  not  be  a  sub- 
sisting lease,  either  at  the  time  of  the  sup- 
posed ouster,  or  at  the  time  of  bringing  the 
action.    If  the  principle  contended  for  by  the 
plaintiff's  counsel  should  prevail,  by  carry 
ing  back  the  fiction,  in  point  of  time, 
recove*rie.s  might  frequently  be  had,       *73 
on  titles  long  since  extinguished,  or 
transferred.     In  this  action  the  plaintiff  is, 
and    must    be    considered,    as 
merely   nominal,    and    all    the   J.^VjVii 
right  and  benefit,  as  belonging   the  n^hi  mid 
to  the  lessor.     If  the  lessor  had    SfiffiS?8* 
no  title  to  enable  him  to  make 
the  lease,  or,  if  he  have  departed  with  his 


73 


N.  CHIPMAN'S  REPORTS. 


(Chittenden  Co. 


title,  though  to  the  lessee  himself,  the  action 
cannot  be  supported. 
The  jury  found  verdict 

for  the  defendant. 


*74 


*NORTON  ex  dem.  A.  DOUGLASS  vs. 
ELIAKIM  SPOONER. 


(Windham,  Dec.  adj'd  term,  1790.) 
Ejectment  for  fifty  acres  of  land  in  "West- 
minister, on  the  original  right  of  A.  Doug- 
lass. 

On  trial  a  deed  was  produced  from  A.  D. 
the  lessor,  to  Norton,  the  plaintiff,  dated  in 
February,  1762,  acknowledged  and  recorded 
June  9th,  1789. 

In  this  case,  the  court  held, 
the*  operation'   that  the  operation  of  the  lease  is 
of  the  lease  is    not  confessed — The  proof  must 
be  according  to  the  allegation. 
If  the  lease  be  made  prior  to  the  con- 
*75      veyance  in  fee,  *the  lease  is  merged. 
If  a  man  take  a  lease  of  his  own  land, 
the  lease  is  void — the  trespass  laid  is  fiction, 
for  which  the  defendant  shall  not  be  pun- 
ished.    The  connection  between  the  lessor 
and  the  plaintiff,  is  supported  by  the  fiction 
of  a  lease.     If  that  fiction  potentially  cease, 
or  a  fact  arise,  which  destroys  the  possibility 
of  such  lease,  or  destroys  its  effect,  if  sup- 
posed once  to  have  existed,  there  can  be  no 
recovery — The  deed  given  in  February,  1762, 
and  recorded  in  June,  1787,  becomes  good 
from  the  date  by  retrospect.     Even  without 
recording,  it  is  good  against  Douglass,  and 
.  his  heirs.   If  a  man  have  a  title 

not  demand  on  in  fee»  he  should  demand  on 
a  lease,  and  re-  that  title,  not  on  a  lease. — A 
plaintiff  demanding  on  bond, 
shall  not  recover  on  note — or  if  he 
*76      demand  in  his  own  right;  *he  shall 
not  recover  in  the  right  of  an  admin- 
istrator.    Douglass   had  departed  with  his 
right  to  Norton — Norton  has  declared  on  a 
lease,  and  proved  a  title  in  fee — He  cannot 
recover  in  this  action. 

Verdict  for  the  defendant. 
N.  B.     In  January,  1791,  Noah  Smith,  Esq. 
resigned  and  Elijah  Paine,  Esq.  was  ap- 
pointed Judge  in  his  stead. 


*77 


*MOSES  PlERSON  VS.  HOVEY  & 
HlBBARD. 


(Chittenden,  Aug.  term,  1791.) 

This  was  an  action  on  Sher- 
iff's  bond  for  liberty  of  the 
prison,  and  assigned  to  the 

Plea  duress,     Plf£ntiff'  tne  creditor. 
and  issue  to  the      Plea,  duress  of  imprisonment 
iury-  and  traverse. 

Substance  of        The  substance  of  the  evidence 
the  evidence.       wag>  that  the  plaintiff  had  re_ 

covered  a  judgment  against  Hovey,  for  £.17; 
10 


bondap 


took  out  execution,  and  delivered  it  to  Grant, 
constable  of  Charlotte,  who  took  Hovey's 
cattle,  posted,  and  delivered  them  on  receipt 
to  W.  and  Strong,  who  left  them  in  Hovey's 
custody — the  cattle  were  not  brought 
to  *the  post,  but  were  eloigned  by  *78 
Hovey.  The  plaintiff  had  the  execu- 
tion returned,  without  being  satisfied,  and 
took  an  alias  which  he  delivered  to  Rich, 
then  Constable  of  Charlotte — Rich  made  de- 
mand of  Hovey,  who  refused  to  turn  out  any 
property  —  whereupon  Rich  took  Hovey's 
body,  and  committed  him  to  goal  in  Rutland, 
according  to  the  precept  of  the  writ,  on  which 
this  bond  was  given,  &c. 

It  was  insisted  by  the  defendant's  counsel, 
that  this  imprisonment  was  illegal, — that 
property  having  been  once  taken  in  execu- 
tion, that  execution  was,  as  to  Hovey,  dis- 
charged. 

In  this  case,  the  Chief  Justice  gave  the  fol- 
lowing in  charge  to  the  Jury. 

The  property  was  not,  in  fact,  taken 
out  of  Hovey's  cus*tody,  but  was  left      *79 
in  his  hands  (although  receipted  by 
third  persons)  and  was  by  him  eloigned.   Had 
the  property  in  fact  remained  in  the  hands  of 
the  officer,  it  might  have  had  a  different  con- 
sideration.    Had  the  propertv 

,  ,,.    .  %     When  proper- 

proved    insufficient,   a    second  ty  taken  on  ex- 
levy  might  have  been  made,  ?cu  jo".  proves 
either  with  the  same  execution,  seconfMevy* 
or  an  alias.     I  do  not  appre-  may  be  made, 
hend,  if  an  officer  take  property 
on  an  execution,  which  proves  not  ^reciudVd 
insufficient,  or  the  property  of  by  an  msuffi- 
another,  he  is  precluded  to  levy  c 
on  the  body;  or,  by  direction  of  the  creditor, 
on  land,  for  the  remainder. 

"On  a  Capias  ad  satis  faciendum,  in  case 
an  escape,  or  rescue,  be  returned,  a  new 
capias  may  be  taken  out;"  for, 
says  the  book,  "an  insufficient 
return  of  an  execution  is  as  none. " 

*The  officer  had  taken  the  cattle,  so       *80 
far  as  to  have  a  lien  upon  them,  for 
satisfaction  of  the  execution.     On  receipt,  I 
do  not  consider,  that  the  officer 
wholly  departs  with  that  lien,   to  prorortyre- 
and  trusts  to  the  receipt  only,   ceipted  on  an 
The  property  is  delivered  out  of  e 
his  actual  custody,  for  the  convenience  of  the 
defendant.     The  officer  is,  therefore,  less  se- 
cure of  the  property;  but  his  lien  still  con- 
tinues.   He  may  take  it  without  the  leave 
of  the  person  receipting.    As      T,)eioign 
the  property  is  out  of  the  actual  property  re- 
custody  of  the  officer,  to  eJoign  gPjJ  gn£°to 
it,  would  not,  in  strictness,  be  some  purposes 
a  rescue;  but  to  some  purposes,   h~s  lhe 'same 
as  in  the  present  case,  might  ders  'the  exe- 
have  the  same  effect— to  render  Button  ineflect- 
the  execution  ineffectual. 

The  Jury  found  a  verdict  for 

the  plaintiffs,  which  was  approved  by 
the  other  Judges,  Knight  and  Paine. 

N.  CHIP. 


Bac.  Abr. 


Kutland  Co.) 


RHODES  v.  RISLEY. 


81 


*81      *UNDERHILL  ex  dem.  UNDERBILL  vs. 

SMITH. 

(.Addison,  Aug.  term,  1791.) 
Ejectment  for  lands  in  Addison. 
The  defendant's  counsel  conceded  the  title 
to  be  in  the  lessor  of  the  plain- 
rivVs  his* title6"  tiff,  unless  the  defendant  had  a 
from  a  proprie-  good    title.  —  The    defendant 
'"ector-     claimed  under  a  deed  from  P. 
Advertisement  collector  of  a  proprietor's  tax  in 
published  in      Addison. — The  tax  was  regular- 

papernTheeiaw  ty  Voted— P.  Was  appointed  COl- 
requires  it         lector,  and  published  a  notifica- 
iishedd  to  tPwa"  tion  of  the  tax,  January  1, 1784, 
Benningtonaud  in  Bennington  paper  only.    The 
law  requiring  all  such  notifica- 
tions to  be  published  both  in  Benning- 
*82      ton  and  Windsor  papers,  was  *passed 
in    October   1783 — an    advertisement 
was  regularly  published,  notifying  the  sale 
to  be  on  Monday  the  first  day  of  September, 
1784. 

In  this  case  the  Chief  Justice 
jury  arge  to  the  ODserved  to  the  jury — A  propri- 
etor's collector  acts,  solely,  by 
virtue  of  a  power  given  by  statute.     He  has 
merely  a  naked  power  to  sell 

anaked'powel  the  lands  of  those  proprietors, 
to  sell,  but  no   who  are  delinquent  in  the  pay- 

lanT*1  1D  ^    ment  °f  the  tax'     He  has  n°  in- 

terest  in  tlie  land.    It  is  neces- 
sary, therefore,  by  the  rules  of  law,  that  he 

should  pursue  his  power  strict- 
Must  pursue    ,       t,  j-o;      ij.      TT 
his  power  strict-  ty.  however  diflicult.    He  must 
ly,  and  give  ail  perform  all  pre-requisites,  which 
required  by  law.  stand  as  conditions  precedent 
to  his  right  of  selling;  such  as, 
otherwise  his  giving  all  previous  notices  re- 
quired, and  in  the  precise  man- 
ner required  by  law.     Otherwise  the 
*83      land  owner  cannot  be  Considered  as 
delinquent,  and  shall  not  forfeit  his 
right.     The  legal  consequence  of  a  deviation 
by  a  collector,  from  the  line  of  proceeding 
pointed  out  by  statute,  is,  to  invalidate  his 
sales,  if  made;  and  he  shall  be  answerable 
to  his  vendee. 

The  Jury  found  for  the  plaintiff  and  ap- 
proved by  all  the  Judges. 


*84 


*RHODES  vs.  RISLEY. 


(Rutland,  Aug.  term,  1791.) 
Action  on  the  case,  for  that  on  the  24th 
day  of  May,  1774,  one  J.  Parker 
endorsed        "  made  his  note  to  Risley,  for  the 


the  en-  8um  of  £.53:12:2.  payable  in 
••  beef,  pork,  &c.  That  after- 
wards, to  wit,  on  the  same  24th  day  of  May, 
1774,  the  said  Risley  did,  by  his  endorsement 
on  the  said  note,  order  the  said  J.  P.  for 
value  received,  to  pay  to  the  plaintiff,  the 
said  sum  of  £53:12:2,  &c.  in  due  form. 

The  note,  with  the  endorsement,  was  pro- 
duced and  read  —  Proved,  that   Parker  died 

insolvent,  about  the  year  1778. 
*85          *The  defendant's  counsel  stated,  and 

N.  CHIP. 


offered  to  prove,  that  in  the  year  1781  the  de- 
fendant employed  one  Pomroy, 
to  bring  an  action  on  the  note,      Defei?d^ltij 
against  one  Grant,  as  executor,  tolprove°the 
in  his  own  wrong  on  the  estate  purpose  of  the 
of  Parker;  Grant  having  mar-  tvMch^was^in 
ried  Parker's  widow,  and  taken  blank,  and  that 
the  estate  without  administer-  pajda" ud taken 
ing;    and   that  Risley 's  name  up,  by  one 
was  then  put  on  the  note  for  J^SSSE 
the  purpose  of  filling  a  power  tor  of  Parker 
of  attorney— That  a  suit  was  JSSgSJ1 
commenced  against  Grant,  who,  that  Grant  had 
afterwards  settled,  paid  Risley  ~JJ  ^  ^ 
a  certain  sum,  about  £20.  and  it  to  the  plain- 
took  up  the  note— That  Grant  j}^§J  l£fd 
put  off  the  note  to  J.  G.  and  J.  tilled  th     en- 

G.   to   the    plaintiff,   Who    filled    dorsementto 
..  ,  r  himself. 

up  the  endorsement  to  himself, 
and  brought  this  action — And  states,  that  the 
defendant  had  never  heard  of  the  note,  since 
the  year  1781,  when  Grant  took  it  up. 

*It  was  objected,  that,  if  a  note  be      *86 
endorsed    blank,    the    endorser    shall 
never  be  allowed  to  prove  it  was      plaintiffs 
intended   for  some  other  pur-  counsel  in  ob- 
pose,  and  not  to  make  him  liable;  Jectlou- 
especially  when  it  comes  into  the  hands  of  a 
third  person.     Agreeably  to  this  have  been 
the  determinations  in  Connecticut — Kirby's 
Rep.  393.  Hungerford  vs.  Thompson. 

By  the  Court — Kirby's  reports  Kirby's  re- 
are  not  to  be  cited  as  an  author-  ports  no  au- 
ity  here,  nor  are  the  determina-  H1''/"^*?  !:h!3 

*  MU it;,  uui  rtii  • 

tions' ot  Courts  in  other  States;    sous  may  be 
but  you  may  cite  their  reasons.     Clted- 

After  a  full  hearing  on  the  objection,  the 
Court  were  of  opinion,  dissenti- 
ente  Paine,  to  admit  the  evi-        BJgJ  ad* 
dence  —  The   following    argu- 
ment is  inserted  from  memory — no  minutes 
were  taken  at  the  time;  but  it  is  the  substance 
of  what  was  said  on  the  question. 

*Chief  Justice.     1  have  never  been      *87 
satisfied  with  those  decisions,  which 
introduce  an  arbitrary  custom, 

.-    j  i  •          Ar.'ument  ot 

to  bind  a  man  contrary  to  his    the  chief  jus- 
express  agreement,  and  the  real    tice  °"  l»e 
equity  of  the  case.   If,  however,    ' 
such  custom  have  generally  prevailed  in  a 
State,  have  been  authorized  by  judicial  decis- 
ions, and  property  be  involved  in  its  contin- 
uance; it  ought  not  rashly  to  be  shaken.    In 
this  state,   I  apprehend,  such      No  custom 
custom  as  is  here  contended  for,    has  prevniied 
has    not    generally    prevailed.   §££  t^e-  f. 
There  have  been  no  leading  de-   fet-t  the  ques- 
cisions  in  the  courts  of  law  on   tion- 
the  point.     The  matter,  therefore,  lies  open 
to  investigation. 

It  is  said,  if  a  man  sign  his  name  blank  on 
a  note,  which  he  transfers,  the  endorsee  may 
fill  it  up  with  a  power,  or  a  general 
endorsement,  for  value  ""received;  and       *68 
from  the  nature  of  the  transaction,  the 
endorser  shall  be  bound,  and   that   he  shall 
never  controvert  the  right,  notwithstanding 
any  agreement  made  at  the  time  of  the  tran.s- 

11 


N.  CHIPMAN'S  REPORTS. 


(Windham  Co. 


fer.    We  lay  aside  custom  and  go  on  the  foot- 
ing of  common  justice  between  the  parties. — 
A  sells  a  note  to  B,  and  to  enable  B  to  re- 
cover of  the  maker,  endorses  his  name  blank 
HOW  far  an    on  tne  note-     At  the  same  time 
endorser  is  re-   it  is  fairly  agreed,  that  B  shall 
risk  the  ability  of  the  maker  of 
the  note,  and  shall,  on  his  failure,  have  no 
demand  on  A.    In  this  case,  A  is,  in  common 
Endorsee         justice  and  honesty,  under  no 
cannot  demand  obligation  to  B,  on  failure  of  the 
aSenKai18   m^er.    Nay,  B  cannot,  with  a 
the  time  of  en-  good  conscience,   demand  any 
thing  of  A.     The  endorsement, 
though  filled  up  by  the  endorsee,  may 
*89      be,  prima  facie,  evi*dence  of  an  obli- 
gation on  the  endorser;  but  it  is  only, 
Endorsement  prima  facie,  evidence,  and  in 
prima  lacieevi- justice,  should    be  allowed  to 
be  controverted.     What  ought 
to  be  decisive  in  this  case,  is, 
if  the  endor-  that  if  the  endorsee  make  use  of 

the  maendorse-  *ne  end°rsenient  contrary  to 
ment,  contrary  agreement,  to  the  damage  of  the 
to  MS  agree-  endorser,  he  is  answerable  in 

ment  he  is  an-     , 

*werabie  in  damages.  This  has  been  clearly 
damages.  decided,  in  Great  Britain,  where 

the  negociation  of  notes  is  carried  to  its 
greatest  length.  This  was  the  great  point 

decided  in  the  case  of  Moses  vs. 

Macpherlan.  Moses  endorsed 
Burr.  1005  &  i,  four  notes  to  Macpherlan,  un- 

Black.  219.  8.  C.     ,  .    , 

der  a  special  agreement,  that 
Macpherlan  should  indemnify  him  against 
all  the  consequences  of  such  endorsement 
(note,  this  agreement  was  in  a  separate 

memorandum.)  Macpherlan  brought 
*90  his  actions,  on  the  several  en*dorse- 

ments,  against  Moses,  at  an  inferior 
Court.  The  Court  refused  to  hear  evidence 
of  the  agreement,  and  gave  judgment  against 
Moses,  who,  thereupon,  brought  his  action 
against  Macpherlan,  to  recover  back  the 
money  so  unjustly  recovered — And  it  was 
solemnly  determined,  that  an  action  well  lay. 

inconsistency  Tnis  is  to  sav' tne  endorser  in 
oi  that  deter-  such  case  is  holden,  and  he  is 
notholden.  The  evidence,  which 
could  not  be  admitted,  to  save  him  from  an 
unjust  payment,  could  be  admitted,  and 
thought  amply  sufficient,  in  another  action, 
to  recover  back  the  identical  money. 

However,  it  was  observed  by  Lord  Mans- 
field, in  that  action,  that  the  inferior  Court 
•did  right  in  not  going  into  the  collateral 
agreement,  otherwise  they  might  have 
*91      gone  into  matters,  *which  exceeded 
their  jurisdiction.     This  reason  seems 
to  imply,  that  a  superior  Court  might,  and 
would  have  gone  into  the  whole  matter. 

Let  us  now  consider  the  nature  of  the 

transaction,  as  it  stands  between  the  original 

endorser,    and    the    subsequent    endorsees. 

And  in  considering  this  point,  I  shall  not 

Principles  of   feel  myself  bound  by  foreign 

the  common       precedents,  but  by  the  principles 

of  the  common  law,  which  are, 

the  principles  of  common  justice  as  they  ap- 

12 


ply  to  the  general  circumstances  and  situa- 
tion of  this  Commonwealth — In  Great  Brit- 
ain, they  consider  the  endorsee  as  giving 
credit,  as  much  to  every  prior,  as  to  his  im- 
mediate endorser.  This,  it  is  said,  is  estab- 
lished by  the  course  of  trade,  and  is  for  the 
benefit  of  commerce.  This  is,  at  least, 
*problematical.  But  as  this  State  is  *92 
not,  and  from  local  situation,  cannot 
be  greatly  commercial,  this  may  be  laid  out 
of  the  question.  The  case  then  will  stand 
thus,  A  sells  a  note  to  B,  at  the  risk  of  the 
purchaser,  and  endorses  it  blank — In  this 
case,  it  is  unconscionable  in  B,  on  failure  of 
the  maker  of  the  note,  to  demand  the  money 
of  A.  But  B  has  sold  the  same  c.  tekes  a  note 
note,  still  endorsed  blank  to  C.  of  B.  endorsed 
The  question  is,  whether  B  can  SSteusvtoB 
give  a  greater  right,  than  he  for  the  right  he 
had  himself.  A's  name  is  on  may  have 

,.  ,,  .  , ,     .     against  A,  on 

the  note — this  may  prove  that  failure  of  the 
B,  the  possessor,  has  a  right  to   maker- 
use,  or  sell,  and  nothing  more,  independent 
of  the  custom.     C  contracts  with  B,  to  B  he 
ought  to  look  for  the  right,  which  he  pur- 
chases, whether  it  be  a  right  against  the 
maker  only — or  whether  A  is  to  war- 
rant, in  *case  the  maker  shall  fail.    If      *93 
B  deceive  C,  he  alone  shall  be  answer- 
able.   The  fraud  of  B.  ought  not  to  injure  A. 
Let  each  trust  where  he  contracts — Caveat 
emptor,    "Beware,    purchaser,"   may    with 
great  justice  be  applied  in  this  case — The 
same  hard,  technical  reasoning  has  prevailed, 
in  some  laws,  against  the  makers  of  a  nego- 
tiable note  in  the  hands  of  an  endorsee,  where 
a  payment,  not  minuted  on  the  note,  has  been 
made  before  the  transfer.     But,  in  some  of 
the  neighbouring  states,  the  same  principles 
of  common  justice,  which  I  now  go  upon, 
have  prevailed,  in  this  point.     The  courts 
have  made  it  a  rule  to  allow  all  payments 
bonaflde  made  before  the  transfer — or  rather, 
before  notice;  and  the  endorsee  must  look 
to  the  endorser  for  so  much.     This 
*differs  only  in  name;  the  reasons  go      *94 
the  whole  length  of  the  present  case — 
the  evidence  ought  to  be  admitted. 

As  to  the  other  point,  of  a  long  time  hav- 
ing elapsed,  without  notice  given  to  the  en- 
dorser, it  is  on  the  part  of  the  plaintiff  to 
prove  due  diligence,  and  reasonable  notice  of 
failure— It  is  not  in  the  present  question. 

The  evidence  was  admitted,  and  the  jury 
found  a  verdict  for  the  defendant. 


*ROBERT  WlER   VS.  T.  CHURCH.         *95 

(Windham,  Sept.  term,  1790.) 
Indebitatus  assumpsitfor  £.45:13:3,  money 
had  and  received,  &c. 

Plea,  Non  assumpsit. 
The  substance  of    the    evi- 
dence to  the  Jury,  was,  that  on 

the day  of ,  1787,  N.  Smith  had 

an  execution  against  R.  Wier,  in  the  hands 
of  an  officer.     The  defendant,  as  agent  for 

N.  CHIP. 


Evidence. 


Windsor  Co.) 


JACOB  v.  SMEAD. 


Smith,  proposed  to  Wier,  that  the  execution 
should  rest,  without  expresly  saying  for  how 
long:  and  that  Wier  should  see  Smith,  for  a 
settlement,  on  a  certain  day,  which  was 
agreed  between  them.  And  to  secure 
*96  *all  damages,  which  might  happen  by 
the  delay,  Wier  delivered  to  Church  a 
note  signed  by  one  Aylesworth,  endorsed  by 
one  Watkins,  and  by  Wier.  At  the  same 
time,  Wier  declared,  if  he  did  not  go,  and 
make  a  settlement,  at  the  time,  the  whole 
should  be  forfeited.  Church  directed  the  of- 
ficer immediately  to  go,  and  serve  the  execu- 
tion on  Wier' s  land,  and  to  keep  it  secret, 
until  he  knew,  whether  Wier  made  the  settle- 
ment;— which  was  done  by  the  officer.  Wier 
did  not  go,  or  make  a  settlement  with  Smith, 
at  the  day — alledging.that  Church  had  broken 
the  agreement.  Wier's  land  was  then  set  off 
to  Smith,  to  satisfy  the  same  execution. 
Church  sold  the  note  to  Shattuck,  who 
brought  an  action  against  Wier,  as  endors- 
er, and  Wier  paid  the  note,  to  the 
*97  *amount  of  £.45:13:3.  It  was  proved, 
that  Wier  said,  the  note  was  good  for 
nothing,  and  that  Church  said,  he  knew 
Wier  ought  to  have  something — but  he  had 
made  a  jocky  trade  with  Shattuck,  and  took 
some  lands,  which  were,  perhaps,  of  no  value; 
and  Shattuck  would  not  join  in  a  settlement. 
Court  The  Court  observed  to  the 

Jury,  that,  though  it  were  not 
u  re  o°The  ter,?ns- expressly  mentioned,  yet,  if 
action,  forbear-  they  found,  it  was  the  mean- 
uln^ct  o°nath"  ing  of  the  parties,  and  followed 
one  part,  which,  from  the  nature  of  the  transac- 
!S>hroe°n-ex~  tion«  tnafc  tne  execution  against 
tioned,  was  in  Wier  should  be  staid,  that  he 
andmcomemgpia.  "?ight  have  an  opportunity  of 
tion  of  the  par-  settling  with  Smith,  it  must  be 
"aTy  ^render!"  considered  as  a  condition  pre- 
performance of  cedent;  for  if  the  execution 
any  avail,  or  went  on,  there  was  no  oppor- 
tunity for  a  settlement,  and  Wier 
*98  would  not  *forfeit,  tho'  he  did  not  at- 
tempt it;  consequently,  Church  could 
have  no  right  to  retain  the  note, 
the'other  part?0  Trover  would  have  lain  against 
it  must  be  taken  Church,  immediately,  on  refusal 
precedent11'  '  to  deliver  it  to  Wier,  while  it 
remained  in  his  own  hands — 
wou^dllZTnfe-  AR  he  has  sold  it,  Wier  has  a 
lendant  have  right  to  wave  the  tort,  and  go 
ty'pWnuff'inay  ^or  *-ne  value  °f  the  note  as 

wave  the  tort       sold. 

vaiul.0  f°r  lhe        Verdict  for  the  plaintiff. 


*99      *  JACOB  ex  dem.  PAINE  &  MORRIS  vs. 

JOEL  SMEAD. 
(Windswr,  Sept.  term,  1791.) 
Ejectment  for  lands  in  Windsor. 
General  issue,  Not  guilty. 

On  trial,  the  plaintiff  gave  in 
evidence  an  office-copy  of  a 
charter  under  Newhampshire, 
of  the  township  of  Windsor,  in  which  Simeon 
Chamberlain  was  a  grantee — a  deed  from 

N.  CHIP. 


Chamberlain  to  J.  Willard,  dated  the  16th  of 
July,  1761—  from  Willard  to  Israel  Curtis, 
3d  October,  1767—  from  Curtis  to  William 
Smead,  1  May,  1770  —  a  power  of  at- 
torney, Dec.  3*0,  *1771,  from  William  *100 
Smead  and  others,  proprietors  under 
the  Newhampshire  grant,  to  N.  Stone,  for 
the  purpose  of  authorising  him  to  procure 
from  the  Governour  of  Newyork,  a  confir- 
mation of  their  claims  in  Windsor,  either  in 
their  names,  in  the  name  of  Stone,  or  in  the 
name  of  any  other  person  or  persons,  as  he 
should  think  proper. 

The  Newyork  Charter,  reciting,  that  the 
Newhampshire  Charter  was  surrendered,  &c. 
was  dated  the  28th  of  March,  1772,  to  N. 
Stone,  and  21  other  persons  —  a  release  from 
the  other  grantees  to  Stone,  dated  the  31st  of 
March,  1772  —  a  deed  from  Stone  to  Henry 
Cruger,  April,  1772,  of  3000  acres  of  land  in 
Windsor,  which  was  sold  by  agreement  of 
the  Newhampshire  proprietors,  to  de- 
*fray  the  expences  of  the  Newyork  *101 
grant  —  the  Will  of  Henry  Cruger,  who 
is  since  dead,  dated  June  llth,  1779,  signed, 
sealed,  and  attested  by  three  witnesses,  in 
which,  among  other  things,  there  is  a  devise 
to  his  executors,  N.  Watson,  -  —  Van 
Schaack,  and  -  —  Cruger;  to  sell  all,  or 
any  part  of  his  lands  in  America  (he  died  in 
England)  in  fee  —  This  Will  had  been  proved 
in  England,  and  was  recorded  in  Windsor, 
Nov.  7th,  1787. 

It  was  objected  by  the  defend- 
ant's counsel,  that  Cruger's  will 
has  never  been  probated  in  any    purpose  of 
proper  olnce  in  this  State:  But 

%       j  I       f^          i     •*   « 

by  the  Court,  it  is  not  necessary, 

to  the  conveyance  —  it  is  suflicient  to  prove 

the  execution  of  the  Will  — 

*A  deed  from  two  of  the  executors,    *102 
to  the  lessors  of  the  plaintiff,  dated  23d 
of  April,  1787,  acknowledged  and  recorded. 

The  land  demanded  is  100  acres,  parcel  of 
the  3000— 

A  receipt  from  W.  Smead  to  N.  Stone,  for 
a  deed  gjiven  to  himself  and  a  third  person, 
of  his,  W  Smead's,  proportion  of  land  in 
Windsor,  under  the  Newyork  grant. 

Objection  by  the  defendant's  counsel,  that 
the  receipt  was  not  proper  evidence,  to  prove 
a  conveyance. 

Court.     It  is  not  designed  to  prove  a  con- 
veyance   from    W.    Smead—        Acceptauce 
Grantees  under  a  former  charter    and    acquies- 
might  surrender  to  the  King,     Sf^SnSy 
without  deed,  and  may  be  bound     be  proved 
by  acceptance  of,  and  aoquies-    wi'hout  d«*J- 
cence  under  a  second  grant,  without 
deed.     The  re*ceipt  may  be  evidence    *103 
of  such  acceptance  aivd  acquiescence. 

Several  witnesses  proved,  that 

Proof  that  the 

there  was  a  general  acceptance,   N.  11.  proprie- 
and  acquiescence  in  the  New-   tors  m-neraiiy 
york  grant,  and  by  W.  Smead   "T-r.mTthat  w. 
in  particular.  It  did  not  appear,   s.  accepted  in 
that  W.  Smead,  who   is   since   r 
dead,  did,  in  his  lifetime,  make  claim  to  the 

13 


pr 


103 


N.  CHIPMAN'S  REPORTS. 


(Windsor  Co. 


lot  in  question,  which  was  divided  to  the 
Chamberlain  right,  under  Newhampshire.— 
The  defendant  claims,  as  heir  to  W.  Smead, 
and  has  taken  possession  since  his  death. 

It  was  conceded,  that  the  de- 
i  eir  tc  w  '  fendant  is  son  and  heir  to  W. 
Smead.  Smead. 

No  evidence  was  produced  on  the  part  of 
the  defendant. 

In  the  charge  to  the  Jury, 

charge  to  the  the  chief  Justice  made,  among 

others,  the  following  observa- 

*104    tions,  to  which  Judge  Knight,  *the 

other  Judge  in  court,  fully  agreed. 

The  right  now  in  question, 
ttoSSSS&t  as  far  as  relates  to  the  opera- 
to  be  agreeably  tion  of  the  charters,  must  be 
ioVce^arthe11  determined  agreeably  to  the 
time,  which  law,  then  in  force,  which  was 
Ton  law  of°m"  the  common  law  of  England. 
England.  The  Governour  of  Newhamp- 

shire, while  this  territory  was 
Power  of  the    under  that  Jurisdiction;  and, 
after  the  transfer  to  Newyork, 
the  Governour  of  that  province, 
had  a  power  to  grant  such  lands,  as  were 
then  in  the  right  of  the  King, 
wer^mlde^y     These  grants  were  not  made  in 
authority  from    the  personal,  or  even  jurisdic- 
a^e  toTen  eon-   tional  right  of  the  Governors, 
sideredas          but  by  royal  authority,  given 

royal  grants.         for  tha(.   purpose.   and  they  are 

The  King  the    t°  ^e   considered,  in  their  COn- 
ultimate  owner   struction,    and     operation,    as 
royal  grants— The  King  was,  in 
view  of  the  law,  the  ultimate  owner 
*105    of  all  lands  *within  his  dominions, 
and  had  the  reversion  in  himself — an 
estate  in  fee,  the  highest  right,  which  a  sub- 
ject could  have,  to  lands,  was 
right  derived      said   to  be  derived  out  of  the 
from  and  sub-  King's  right,  and  to  be  subor- 
his  "ighV0'        dinate  to  that  right.   Agreeably 
to   this   doctrine,   a    surrender 
Surrender       might  be  made  to  the  King,  of 
'de'  a  former  grant.   On  a  surrender 
the  King  was  in  of  his  former  right,  and 
might  grant  again  as  he  pleased. 

The  plaintiff,  in  this  case  re- 
on1  a' surrender  ^es»   that    the    Newhampshire 
ot  the  N.  H.       charter  of  the  town  of  Windsor, 
was  surrendered  into  the  hands 
And  that  the    of  the  Governour  of  Newyork 
NY  grant  op-  for  the  crown;  and,  that  the 
firrmationa  C°U    letters  patent  issued,  in  conse- 
quence,   by    that    Governour, 
acting  for  the  Crown,  and  intended  to  op- 
erate by  way  of  confirmation  to  the  claim- 
ants  under  the  former  grant,    were 
*106     *good  and  valid.     The  act  itself,  by 
which  the  surrender  was  made,  is  not 
produced.     The  proof  of  a  surrender  of  the 
Newhampshire  grant,  arises  from  the  power 
given  to  Stone,  the  agent — from 
8u?reC.!dae'r0in      the  recital  contained  in  the  let- 
the  2d  grant,      ters  patent  of  Newyork ;  which, 
pri.ma  facie        we  think,  is  good  ground  of  pre- 
sumption, and,  indeed,  prima 

14 


facie,  evidence  of  a  surrender; — and  from 
the  acceptance,  and  long  acquiescence  of  the 
Newhampshire  proprietors,  un-     Long  acquies. 
der  this  grant;  It  should  seem,  cenceunderthe 
that  the  acceptance  and  acqui-  Of^ednasyaver 
escence  alone,  which  must  have 
involved  almost  the  whole  property  of  the 
land  in  the  town,  would  be  con-      Presumptlon 
strued  a  waver  of  the  former  from  the  N.  H. 
grant,  and  a  confirmation  of  the  ^«ter  not  be- 
latter.     It  may  be  further  ob- 
served, the  original  charter  of  New- 
hampshire has  not  been  *produced;    *107 
and  it  is  agreed,  that  it  was  lodged  in 
the  office  of  the  Secretary  of  the  Province  of 
Newyork,  previous  to  issuing  these  letters 
patent,  and,  that  it  remained  in  that  office. 
The  defendant,  in  this  action      Defendant 
stands  in  the  place  of  his  father,   stands  in  place 
William  Smead;  and  his  claim   of  W.  Smead. 
must  be  viewed  in  the  same  light.  W.  Srnead, 
who  claimed  the  premises  under  the  grant  of 
Newhampshire,  was  a  proprietor  of  several 
rights,  or  shares,  and  was  one  of  those,  who 
executed  the  power  to  Stone,  to      w  gm^,^ 
procure  a  confirmation  from  the  executed  a ' 
Governour  of  Newyork.     It  is  gn&8B5l 
in  evidence,  that  W.  Smead  ac-   him  a  deed  of 
cepted   from   Stone  a  title  of   lau<*s&c. 
lands  in  Windsor,  to  himself  and  vendees, 
in  full  for  his  claim  under  the  former 
grants;  in  part,  of  the  same  *lands,     *108 
which  he  formerly  claimed,  and  in  part 
of  other  land,  the  benefit  of  which  he  enjoyed 
and  left  to  his  heirs;  for  it  will  be  observed, 
that  under  the  Newyork  grant,  the  whole 
property  was  vested  in  Stone,  in  trust,  that 
he  might  convey  to  every  one,  according  to 
his  right;  and,  that  the  division,  which  was 
made  under  the  N.  Hampshire  title,  was  not 
then  taken  to  have  any  legal  efficacy,  but 
served  only  for  description.     Had  the  ques- 
tion arisen  between  a  Newyork 
claimant,  and  a  claimant  under 
N.  Hampshire,   who   had    dis-  vorabieiora 
agreed    to    these   proceedings, 
and  refused  any  benefit  under 
the  second  grant,  it  might  have  had  another 
consideration;  at  least,  it  would  have  stood 
in  a  more  favorable  light.     The  Governour 
of  N.  York,  and  the  authority  of  that 
*Province,  were  guilty  of  the  highest    *109 
oppression   and  injustice  toward  the 
Newhampshire  grantees.  They  held  the  titles 
derived  through  the  Governour  of  Newhamp- 
shire to  be  void.     They  were  able  to  enforce 
this  opinion  by  violent  laws,  and  by  the  arbi- 
trary  decisions   of  their  courts — In   conse- 
quence of  these  measures,  they  extorted  large 
sums   of    money  from    the  Newhampshire 
grantees  and  settlers,  for  what  they  called,  a 
confirmation.     This  was  practised  upon  the 
proprietors  of  Windsor.     It  is  insisted,  that 
the  injustice  of    this  demand 
ought  to  invalidate  the  New- 
york   grant.     It  is,    wholly,  a  eiation  given 
new  doctrine,  that   the  great- 
ness,  or,  if  you  will,  the  enor- 

N.  CHIP. 


Windsor  Co.) 


JACOB  v.  SMEAD. 


109 


raity  of  the  consideration  given,  should  in- 
validate a  grant.     If  it  be  not  a  legal 
*110    reason,  it  is,  certainly,  *a  favorable 

N.  CHIP. 


argument  for  the  grantees,  in  support  of  their 
grant. 
Yerdict  for  the  plaintiff. 

15 


END  OF  THE  REPORTS. 


PART  II. 

DISSERTATIONS 

ON  THE  STATUTE  ADOPTING  THE 

COMMON  LAW  OF  ENGLAND,  THE  STATUTE  OF  CON- 
VEYANCES, THE  STATUTE  OF  OFFSETS, 

AND    ON    THE 

NEGOTIABILITY  OF  NOTES. 

N.  CHIP.— 2  (*113)  17 


PREFACE  TO  THE  DISSERTATIONS. 


I  have  not  the  vanity  to  suppose,  that  the  opinions  contained  in  the  following 
Dissertations,  are  to  be  considered  as  precedents — they  are  only  private  opinions  upon 
points  of  very  considerable  importance  in  the  administration  of  law  and  justice,  in 
this  State.  It  has  been  my  aim  to  derive  these  opinions  from  principles,  which 
coincide  with  the  principles  of  our  government,  and  the  spirit  of  its  laws ;  and  to 
support  them  by  reason,  rather  than  by  precedents. 

A  knowledge  of  the  principles,  in  which  precedents  are  founded ;  and  the  true 
reason  of  their  application,  is  of  much  greater  importance  in  the  profession  of  the  law, 
than  the  knowledge  of  precedents  only.  The  latter  may  serve  to  form  the  mere  tech- 
nical lawyer ;  the  first  leads  to  the  fountains  of  justice,  the  existing  relations  of  nature 
in  society,  and  connects  the  principles  of  law  with  the  true  principles  of  morality. 

It  is  believed,  that  the  principles  and  reasons,  an  illustration  of  which  is  here 
attempted,  have,  if  well  founded,  often  occurred  to  gentlemen  of  the  profession.  To 
such,  these  Dissertations  may  be  less  useful;  but,  I  flatter  myself,  that  they  may 
be,  in  some  measure,  useful  to  students,  by  exciting  them  to  the  due  use  of  their 
reasoning  powers,  as  well  as  the  power  of  memory ;  and  by  furnishing  them  with 
some  hints  for  a  proper  estimate  of  precedents,  their  principles  and  application. 

RUTLAND,  September  3,  1792. 

N.  CHIP.  (*115-116.)  19 


A    DISSERTATION 

ON  THE  ACT  ADOPTING  THE 

COMMON  AND  STATUTE  LAWS 

OF  ENGLAND. 


*117    *The  reasons  for  passing  this  act  are 
contained   in  the  following  pre- 
amble: 
Preamble. 

"Whereas  it  is  impossible,  at  once,  to  pro- 
vide particular  statutes,  applicable  to  all 
cases  wherein  law  may  be  necessary  for  the 
happy  government  of  this  people.  And 
whereas  the  inhabitants  of  this  State  have 
been  habituated  to  conform  their  manners  to 
the  English  laws,  and  hold  their  real  estates 
by  English  tenures." 

*118      *lst  section.    Adopting  the  common  law 
of  England. 

By  the  first  section  it  is  enacted,  "That  so 
'much  of  the  common  law  of  England,  as  is 
'not  repugnant  to  the  constitution,  or  to  any 
'act  of  the  Legislature  of  this  State,  be,  arid 
'is  hereby  adopted,  and  shall  be,  and  con- 
'tinue  to  be,  law  within  this  State." 

What  is  understood  by  the  common  law  of  Eng- 
land. 

By  the  common  law  of  England,  exclusive 
of  positive  laws  enacted  by  statute,  are  un- 
derstood those  rules  and  maxims,  by  which 
decisions  are  made  in  their  courts  of  law, 
whether  in  relation  to  the  mode  of  prosecut- 
ing a  right,  or  to  the  right  itself — Rules  and 
maxims,  which  have  been  there  adopted, 
"time,  whereof  the  memory  of  man  runneth 
"not  to  the  contrary." 

Learnt  from  law  reports. 

For  a  knowledge  of  the  common  law  of 

England,  we  must  have  recourse  to 
*119  the  history  of  their  law  proceedings, 

handed  down  in  almost  innumerable 
volumes  of  reports,  and  to  the  writings  of 
the  sages  of  their  law.  Hence  are  drawn 
maxims  and  precedents  for  the  decision  of 
all  causes,  at  common  law. 

Adopted  under  restriction*. 

The  aforegoing  statute,  adopting  the  com- 
mon law  of  England,  in  this  state,  has  ren- 
dered a  knowledge  of  that  law  indispensible 
in  our  courts.  This  statute  expressly  limits 
the  adoption  of  the  common  law,  to  so  much 
as  is  not  repugnant  to  the  constitution,  or 
any  act  of  the  Legislature-  of  this  State. 

N.  CHIP. 


Cases  in  which  U  is  excluded. 

By  this  limitation,  all  that  part  of  the  com- 
mon law,  which  relates  to  the  royal  person, 
family,  and  prerogative ;  all  which  relates  to 
the  peerage,  their  privileges  and  pre-em- 
inence, is  excluded. 

We  have  no  common  law  officers. — They  are  all 
by  constitution  or  statute. 

We  have,  strictly  speaking,  no  com- 
*mon  law  officers — all  the  offices  in    *120 
in  this  state,  are  established,  and  the 
duties,  in  general  terms,  pointed  out  by  the 
constitution,  or  by  statute.     The  terms  and 
expressions,  adopted  in  both,  are  frequently 
derived  from  the  common  law.    The  office  of 
Sheriff,  for  instance,  is  contemplated  in  the 
constitution,  and  established  by  statute. 

Their  duties  may  sometimes  be  learnt  from  the 

common  law. 

His  power  and  duties  are  pointed  out,  gen- 
erally, by  statute:  those  are,  mostly,  the 
same,  as  those  of  a  Sheriff  in  England;  yet 
these  powers,  and  duties,  are  derived  from 
the  constitution  and  statutes  of  this  state, 
and  limited  by  them — the  manner,  in  which 
these  shall  be  exercised,  if  not  pointed  out  by 
our  laws,  must  be  learned  from  the  common 
law  of  England,  so  tar  as  adopted  here — as, 
the  manner  of  an  arrest — what  shall  be 
deemed  an  escape. 

*Rulcs  of  practice  in  few  instances  ad-      *121 
mltted. — English  rules  aupllcalile  in 
plctidlngs,  in  torts,  frauds,  and  con- 
tracts. 

From  the  different  constitution  of  our 
courts,  the  English  mode  of  practice  can,  in 
very  few  instances,  be  adopted;  but  their 
rules  may,  in  most  instances,  be  applied  in 
determinations  on  pleas  and  pleadings;  in 
the  construction  of  words  and  of  laws;  in 
almost  every  instance,  which  can  arise,  in 
our  state  of  society,  between  individuals,  on 
torts,  frauds,  or  contracts. 

Less  in  title*  of  land,  except  where  ilcrlvcd  under 

UIOKC  l<nrx. 

It  will  be  much  more  restricted  in  cases 
arising  on  our  landed  titles.  Many  of  those 
titles  were  derived  from  the  king  of  Great- 
britain,  and  many  conveyances  made,  wliilo 
under  British  laws  and  government.  Their 

21 


121 


N.  CHIPMAN'S  REPORTa 


validity  and  operation  must  be  decided  by 
the  laws,  under  which  they  were  derived  and 
made. 

Titles  changed  from  fee  to  allodial. 
But  our  landed  property  has  suffered  a 

great  alteration  by  the  revolution.    It 
*122    *has  been  changed,  in  the  hands  of 

the  owners,  from  estates  in  fee,  into 
allodial  estates,  holden  no  longer,  even  in 
idea,  of  a  superior. 
Mode  of  descent,  affinity,  &c. 

The  mode  of  descent,  and  right  of  inherit- 
ance, depend,  intirely,  on  our  statutes ;  while 
the  degrees  of  affinity  and  consanguinity  are 
to  be  learned  from  the  common  laws  of  Eng- 
land. 

Entails,  and  every  consequence  of  the  feudal  ten- 
ure abolished. 

The  whole  chapter  of  entails  is  abridged — 
perhaps  expunged — in  a  word,  all  the  conse- 
quences of  the  feudal  tenure  are  abolished — 
a  tenure  once  very  general  in  Greatbritain, 
the  traces  of  which  are  still  visible  in  all  their 
laws  relative  to  landed  property,  and  which 
introduced  rules  and  maxims,  full  of  absurd- 
ity and  oppression — Rules  and  maxims, 
which,  there,  still  operate  more  or  less, 
*123  although  the  reason  of  *their  intro- 
duction has  long  creased.  That  part 
of  the  common  law,  which  arose  from  the 
adoption  of  the  cannon  law,  has  shared  the 
same  fate. 

I  have  given  these  instances,  by  way  of 
example  only.  It  is  not  my  design  to  enu- 
merate every  instance,  in  which  the  common 
law  of  England  is  to  be  applied  in  this  State, 
or,  in  which  it  is  excluded  or  restricted.  It 
will  be  of  more  use  to  discover  some  general 
principles,  which  may  enable  us  to  distin- 
guish properly,  in  our  applications. 

Common  law  a  system  of  rules,  Sec. — Precedents 
have  been  too  highly  esteemed. 

The  common  law  of  England  is  a  system 
of  rules,  supported  by  precedents,  handed 
down  from  remote  antiquity.  These  prece- 
dents have,  by  the  body  of  the  law,  as  is  com- 
mon enough  with  professional  men,  been 
held  in  too  great  veneration. 

*134      *Dlsadvantages  under  which  many  prec- 
edents have  been  formed. 

A  number  of  precedents,  in  point,  how- 
ever obscure,  or  uncertain  the  principles, 
upon  which  they  were  founded,  have  been 
held,  fully  decisive  of  a  similar  question; 
and  yet  many  of  these  precedents  were  made 
at  a  time,  when  the  state  of  society,  and  of 
property,  were  very  different,  from  what 
they  are  at  present;  in  an  age,  when  the 
minds  of  men  were  fettered  in  forms;  when 
forms  were  held  to  be  substances,  and  ab- 
stractions, real  entities.  Technical  reasoning, 
and  unmeaning  maxims,  of  course,  frequently 
supplied  the  place  of  principles.* 


*"Solvatur  eo  ligamine,  quo  ligatur,"  literally, 
"Let  it  be  loosened  by  the  same  tie,  by  which  it  is 
bound. "  This  pompous,  unmeaning  maxim  was  in- 
troduced from  the  civil  law.  Tying  and  untying, 

22 


* Alterations  in  society.  *125 

Society  was  in  a  state  of  meliora- 
tion.   Manners  and  sentiments  progressed 
towards  refinement.   Intercourse  between  in- 
dividuals, as  well  as  nations,  began  to 
be  extended,  and  in  *some  measure,     *126 
secured,  the  rights  of  property,  and  the 
rights  of  commerce  were  investigated,  and 
better  understood.     The  clouds,  which  had 
long  hung  over  the  reasoning  faculties,  be- 
gan to  be  dispersed;  principles  were  exam- 
ined, and  better  established. 

Cessante  ratione,  cessat  et  ipsa  lex,\  was 
adopted  as  a  maxim  of  the  common  law;  for, 
in  those  times,  nothing  could  be  decided,  or 
altered,  without  a  precedent,  or  a  maxim. 

Some  precedents  which  were  become  absurd,  set 
aside. 

By  the  application  of  this  maxim,  some 
precedents,  which  were  originally  absurd, 
and  some,  which  had  become  inapplicable, 
thro'  a  change  of  times  and  circumstances, 
were  set  aside. 

Difficulties  intervening. 

The  progress,  however,  was  slow.    Men 
correct,  or  give  up  with  reluctance,  those 
things,  which  have  cost  them  much 
pains,  in  *learning.    Many  such  prec-    *127 
edents  had,  however,  become  a  rule 
of  property.    These  could  not  be  shaken  by 
the  Judges,  without  the  greatest  injustice  to 
individuals.     They  must,  therefore,  wait  a 
legislative  remedy. 

Precedents  to  be  followed,  unless  flatly  absurd^ 

from  a  deference  to  former  times. 

Upon  rules  and  precedents,  Judge  Black- 
stone  has  the  following  observations,  "Not 
that  the  particular  reason  of  every  rule  in 
the  law  can,  at  this  distance  of  time,  be  al- 
ways precisely  assigned ;  but  it  is  sufficient 
that  there  is  nothing  in  the  rule,  flatly  con- 
tradictory to  reason ;  and  then  the  law  pre- 
sumes it  well  founded."  And  again,  "Prec- 
edents are  to  be  followed,  unless  flatly  ab- 
surd, or  unjust:  for  though  their  reason  be 
not  obvious  at  first  view,  yet  we  owe  such  a 


binding  and  loosing  are  different  operations,  con- 
nected only  by  the  subject,  and  may  be  performed 
by  different  means  and  different  powers.  There  is 
no  kind  of  similitude  between  them.  By  a  forced 
application  of  this  unmeaning  maxim,  many  an 
obligor  has  been  condemned  to  a  second  discharge 
of  his  obligation,  although  able  to  make  indubi- 
table proof  of  a  former  discharge,  differing  from 
his  contract  only,  in  some  immaterial  circumstance,, 
to  the  full  acceptance  of  the  obligee ;  and  this,  be 
cause  he  could  not  make  his  proof  by  an  instru- 
ment of  the  same  kind  with  that,  by  which  he  was 
bound.  Lord  Kaims,  has  somewhere  nearly  the 
same  observations. 

Let  me  here  add  an  instance  of  a  different  kind. 
The  whale  was  a  royal  fish.  The  head  was  allotted 
to  the  king ;  the  tail  to  the  queen.  Lex  est  summa 
ratio.  Law  is  the  perfection  of  reason.  A  reason 
must  be  given  for  this  allotment.  Say  the  ancient 
lawyers,  with  much  gravity,  "the  tail  was  given 
to  the  queen  to  furnish  her  wardrobe  with  whale 
bone ; "  but  for  this  as  whale  bone  is  found  only  in 
the  mouth  of  that  fish,  she  must  have  been  still 
beholden  to  the  king. 

t  When  the  reason  of  a  law  ceases,  the  law  itself 
ceases. 

N.  CHIP. 


ON  THE  STATUTE  ADOPTING  THE  COMMON  LAW  OF  ENGLAND.        127 


deference  to  former  times,  as  not  to  sup- 
*128    pose  they  *acted  wholly  without  con- 
sideration. "    Blackstone's  com.  I.  70. 

This  seems  not  a  good  reason. — True  reason  in 
that  kingdom. — With  us,  no  rule  ought  to  be 
adopted,  unless  a  good  reason  can  be  given  for 
the  rule  itself. 

This  might,  perhaps,  be  well  eno'  in  Eng- 
land. But  the  principal  reasons,  there,  for 
so  strict  an  observance  of  precedents,  are 
that  the  rules  of  law  may  from  their  per- 
manent uniformity,  be  the  better  known; 
and  lest  by  too  easy  a  departure.  Judges 
might  unwarily  disturb  rights,  or  property 
acquired,  transmitted,  or  holden  on  the  faith 
of  such  precedents.  If  no  reason  can  be  as- 
signed, in  support  of  rules,  or  precedents, 
not  already  adopted  in  practice,  to  adopt  such 
rules,  is  certainly  contrary  to  the  principles 
of  our  government,  and  the  spirit  of  our 
laws,  which  admit  not  of  arbitrary  rules,  or 
of  arbitrary  decisions,  even  in  matters  in- 
different. 

We  ought  not  to  yield  to  former  ages  the  prin- 
ciples and  reasons  of  the  present. 

We  can  readily  suppose,  that  former 
*129  ages  did  not  act  *  without  considera- 
tion; we  can  believe  them  to  have 
acted  upon  principles  and  reasons,  which 
arose  out  of  their  state  of  society;  but  it 
would  be  too  great  a  deference  to  concede  to 
them,  who  are  now  no  way  interested  in  the 
concession,  or  affected  by  it,  the  principles 
and  reasons,  which  arise  out  of  the  present 
state.  It  is  much  more  just  to  them,  and  to 
ourselves,  to  suppose,  that  good  reasons, 
there,  existed,  which,  from  a  change  of  cir- 
cumstances, have  long  since  ceased.* 

*130      *A  particular  rule  of  the  common  law,  in 
what  deficient. 

It  was  a  rule,  that  if  a  statute  be  made, 
altering  the  common  law,  and  a  statute  come 
after,  repealing  the  former  statute,  the  com- 
mon law  revives.  But  it  ought  to  be  under- 
stood with  this  limitation,  if  the  common 
law  be  founded  on  principles,  still  existing 
In  the  present  course  of  justice. 

Legal  right  and  wrong,  have  relation  to  the  prin- 
ciples of  the  government. 
Legal  right  and  wrong,  particularly  in 
criminal  jurisprudence,  have  an  intimate  re- 
lation to  the  constitution,  principles,  and 
circumstances  of  the  government.  There 
will  be  a  coincidence  between  the  principles 
of  the  government,  the  spirit  of  its  criminal 
law,  and  the  mode  of  interpretation  and  ex- 
ecution. 


*  Determinations  of  law,  though  they  cannot  al- 
ways go  the  full  extent,  ought  never  to  stand  op- 
posed to  the  nicest  sense  of  moral  obligation,  to 
the  principles  of  the  government,  or  to  what  ought 
to  be  the  spirit  of  its  laws.  In  adjusting  these,  we 
should  act  more  wisely,  if  instead  of  entertaining 
a  blind  veneration  for  ancient  rules,  maxims  and 
precedents,  we  could  learn  to  distinguish  between 
those,  which  are  founded  on  the  principles  of  hu- 
man nature  in  society,  which  are  permanent  and 
universal,  and  those  which  are  dictated  by  the  cir- 
cumstances, policy,  manners,  morals  and  religion 
of  the  age. 


*British  government  consists  of  a  mon-      *131 
archy  Ac, — Their  laws  influenced  by 
the  monarchical  principles. 
The  British  government,  which  has  ever 
been  a  mixture  of  monarchy,  aristocracy, 
and  democracy,  has  principles,  peculiar  to 
that  government.     The  monarchical    prin- 
ciples have  a  silent,  but  uniform  influence 
on  their  criminal  jurisprudence.* 

*Former  dependence  of  judges.— Fear,  as      *132 
well  as  honor,  influence  in  a  mon- 
archy.— Roughness   of  ancient  man- 
ners. 

At  the  time,  when,  the  common  law  was 
growing  into  a  system  by  means  of  prece- 
dents, the  Judges  were  solely  dependent  on 
the  Crown.  Monarchy  procures  obedience 
no  less  by  fear,  than  by  the  principle  of 
honor.  The  higher  orders  in  the  govern- 
ment, and  the  most  aspiring  characters,  are 
influenced  by  the  prospect  of  attaining 
honors.  The  multitude  are  re*strained  *133 
by  fear.  The  manners  of  the  people 
were  rough,  and  little  short  of  savage. 

All  these  have  introduced  an  excessive  severity, 

which  still  exists  in  their  laws. 

From  all  these  circumstances,  their  pun- 
ishments became,  in  many  instances,  shock- 
ingly severe. — Whether  it  be  owing  to  the 
force  of  habit,  to  the  influence  of  the  mon- 
archical and  aristocratical  principles  in  their 
government,  or  both,  modern  refinement  of 
manners,  modern  delicacy  of  sentiment  has 
prevailed  very  little  to  soften  that  severity. 
Their  laws,  like  those  of  Draco,  may  em- 
phatically be  said  to  be  WRITTEN  IN  BLOOD. 
They  have  about  one  hundred  and  sixty  cap- 
ital offences.  Blackstone's  com.  iv.  18. 
These  are,  mostly,  created,  or  confirmed  by 
statute;  but  some  are  still  crimes  at  common 
law  only. 


*  Many  instances  might  be  given  of  the  influence 
of  feudal,  monarchical  and  aristocratical  principles 
on  the  decisions  of  the  English  law.  The  follow- 
ing are  selected  as  examples : 

Homicide  per  infortunium;  or  the  killing  of  a 
man  by  misadventure,  is  held  to  be  a  crime.  The 
manslayer  is  indeed  pardoned  of  course;  but  he 
forfeits  his  goods  to  the  king :  because,  says  the 
law,  the  king  has  lost  a  subject.  This  is  evidently 
of  feudal  original.  The  forfeiture  was  at  first  in- 
tended as  a  reparation  to  the  king  for  the  loss  of  a 
vassal. 

The  absurd  doctrine  of  deodands,  which  still  dis- 
graces the  English  laws,  was  derived  from  the  su- 
perstition of  the  times;  but  is  now  considered  as  a 
prerogative  right. 

By  attainder,  the  blood  of  the  person  attainted 
is  supposed  to  be  corrupted,  and  to  have  lost  every 
inheritable  quality.  The  king  may  pardon  the 
person  attainted,  and  make  him  a  new  man,  but 
cannot  restore  his  former  inheritable  connexions, 
or  prevent  an  escheat  to  the  lord.  A  son,  born  be- 
fore the  attainder,  shall  never  inherit  to  this  new 
man;  his  after  acquisitions  .shall  nit  her  escheat. 
An  after-born  son  may  inherit ;  but  not  if  there  be 
any  former  son  living,  or  heir  of  such  son. 

The  following  rule,  which  was  adopted  in  a  mat 
ter  of  mere  civil  right,  is  of  the  same  feudal  or- 
igin: 

The  brother  of  the  half  blood  shall  never  inherit 
to  the  brother  of  the  whole  blood:  The  foe  shall 
rather  escheat  to  the  lord;  because,  by  the  feudal 
constitution,  the  descent  is  confined  to  the  whole 
blood  of  the  first  feudatory. 


N.  CHIP. 


133 


N.  CHIPAIAN'S  REPORTS. 


The  government  of  Vermont  wholly  democratic. 
The  government  of  this  State  is  that 
*134    of  a  democratic  republic.    *The  prin- 
ciple of  this  government,   by  some 
called  virtue,  is  a  sentiment  of  attachment 
to  its  constitution  and  laws. 

Dictates  moderation. 

This  principle  dictates  moderation,  in  the 
enacting,  in  the  interpretation,  and  execu- 
tion of  its  laws.  Here,  there  is,  perhaps, 
some  danger,  lest,  through  the  influence  of 
precedents,  the  courts  should  deviate  from 
the  spirit  of  moderation,  the  true  spirit  of 
our  laws. 

Common  law  precedents  cannot  justify  a  capital 

punishment. 

I  should  lay  it  down  as  an  unalterable  rule, 
that  no  Court,  in  this  State,  ought  ever  to 
pronounce  sentence  of  death  upon  the  au- 
thority of  a  common  law  precedent,  without 
the  express  authority  of  a  statute. 

Fines  shall  be  moderate. 

"All  fines,"  says  the  constitution,  shall  be 
proportioned  to  the  offences. — This  is  not  to 
be  understood  of  pecuniary  mulcts  only. 

The  word  fines  is  here  to  be  taken  as 
*135  *synonymous  to  punishments.  Taken 

in  this  large  sense,  the  clause  is  con- 
sonant to  the  principles  and  spirit  of  our 
government  and  laws. 

An  act  which  is  criminal  in  England,  may  not 
be  so  in  Vermont. 

Actions,  which  are  criminal  in  England, 
may  not  be  so  in  Vermont.  Civil  crimes  be- 
come such  by  a  certain  relation  to  the  society, 
where  they  are  committed.  From  the  differ- 
ence of  the  relation  in  different  societies,  the 
same  action  may  be  either  not  criminal  at 
all,  or  criminal  in  a  different  degree.  Here, 
cessante  ratione,  cessat  et  ipsa  lex,  ought  to 
be  applied,  whether  to  determine  an  action 
not  to  be  criminal,  or  to  be  criminal  in  a  less 
degree. 

The  principles  of  the  common  law  are  competent 
to  determine  an  act  to  be  a  crime,  and  to  pun- 
ish; but  short  of  death. 

Kay  the  principles  of  the  common  law, 
which  are  the  true  principles  of  right,  so  far 

as  discoverable,  are  competent  to  de- 
*136  cide  on  the  criminality  of  an  *action, 

which  shall  be,  notoriously,  and  fla- 
grantly, injurious  to  society  in  this  State; 
altho'  such  an  action  had  never  been  done, 
or  even  heard  of  in  England,  and  to  declare 
a  punishment,  but  short  of  death. 

Lord  Mansfleld,  as  a  Judge. 

Lord  Mansfield  was  powerfully  attached 
to  the  monarchical  and  aristocratical  prin- 

24 


ciples  of  the  British  government.  Whenever 
these  intervened,  in  a  cause,  they  had  great 
influence  on  his  reasonings.  In  other  ques- 
tions merely  of  a  civil  nature,  he  was  a  great, 
and  a  good  Judge.  No  Judge,  perhaps,  in 
that  country,  ever  had  a  more  thorough 
knowledge,  both  of  the  principles  and  prece- 
dents of  the  common  law. 
His  opinion  of  the  common  law. 

His  judicial  opinion  may  be  considered  as 
a  common  law  precedent,  in  the  construction 
of  this  statute.  "The  law  of  Eng- 
land" *says  he,  "would  be  an  absurd  *137 
science  indeed,  were  it  decided  upon 
precedents  only.  Precedents  serve  to  illus- 
trate principles,  and  to  give  them  a  fixed 
certainty,  but  the  law  of  England,  which  is 
exclusive  of  positive  law,  enacted  by  stat- 
ute, depends  upon  principles;  and  these  prin- 
ciples run  through  all  the  cases,  according  as 
they  fall  in  with  the  one,  or  the  other  of 
them."  Cowp.  37.  Jones  vs.  Randall  &  al. 

This  statute  adopts  those  principles  of  the  com- 
mon law,  which  are  applicable,  &c.  rather  than 
the  precedents. 

We  may  then  lay  it  down,  that  this  statute 
gives  the  citizens  t)f  this  State  the  rules, 
maxims,  and  precedents  of  the  common  law, 
so  far  as  they  serve  to  illustrate  principles — 
principles  only,  which,  from  the  situation  of 
society  with  us,  exist  in  this  state;  but  does 
not  impose  upon  them  those  principles, 
which  from  the  particular  circum- 
stan*ces  of  that  government,  exist  *138 
only  in  England. 

II.  Section. — Recital. — Adopting  statute,  &c. 

The  act  goes  on  to  recite  that,  "Whereas 
the  statute  law  of  England  is  so  connected 
and  interwoven  with  the  common  law  that 
our  jurisprudence  would  be  incomplete  with- 
out it;  therefore  it  is  enacted,  that  such  stat- 
ute laws,  and  parts  of  laws,  of  the  kingdom 
of  England  and  Great  Britian,  as  were  passed 
before  the  first  day  of  October  A.  D.  1760, 
for  the  explanation  of  the  common  law,  and 
which  are  not  repugnant  to  the  constitution, 
or  some  act  of  the  legislature,  and  are  ap- 
plicable to  the  circumstances  of  the  state,  are 

i  hereby  adopted  and  MADE,  and  shall  be,  and 
continue  to  be,  law  within  this  state,  and  all 

|  courts  are  to  take  notice  thereof,  and  govern 

J  themselves  accordingly." 
*Restriction  in  this  section.  *139 

In  this  section  the  words  "and  are 
"applicable  to  the  circumstances  of  the  state," 
render  any  comment  unnecessary.     Indeed, 

!  though  these  words  are  not  expressed  in  the 
former  section,  tamen  tacite  inmnt;  they 
.are  contained  in  sense. 

N.  CHIP. 


A  DISSERTATION 

ON    THE 

STATUTE  OF  CONVEYANCES. 


*141    *"An  act  for  authenticating  and  reg- 
istering Deeds  and  Conveyances. 
Preamble. 

"For  preventing  fraudulent  sales,  and  in- 
cambrancea  of  real  estates,  and  to  the  intent 
it  may  be  better  known  what  title  or  interest 
persons  have  in  or  to  such  estate  as  they 
shall  offer  to  sale: 
I.  Section. 

"  Be  it  enacted,  &c.  That  all  deeds  and  con- 
veyances of  any  houses  or  lands  within  this 
state,  signed,  sealed  and  delivered,  by  the 

parties  granting  the  same,  having 
*142  good  and  law*ful  authority,  attested 

by  two  or  more  witnesses,  and  ac- 
knowledged by  such  grantor,  or  grantors, 
before  a  Justice  of  Peace,  and  recorded  at 
length  in  the  Town  Clerk's  records,  where 
such  houses  or  lands  do  lie,  shall  be  valid  to 
pass  the  same,  without  any  other  act  or 
ceremony  in  the  law,  whatsoever;  want  of 
livery  of  seizin,  or  atornment  of  possessors, 
notwithstanding. " 

Intention  is  expressed  in  the  preamble,  to  give  a 

notoriety  to  conveyances,  &c. 

The  intention  of  the  legislature,  in  passing 
this  act,  is  fully  expressed  in  the  preamble; 
and  it  will  be  necessary,  in  the  construction, 
to  have  an  eye  constantly  upon  this  inten- 
tion. The  intention  is  generally,  to  give  a 
notoriety  to  all  rights,  titles,  and  legal  claims 
to  or  upon  any  real  property  within  this  state. 
1st.  For  the  benefit  of  creditors. 

1st.  For  the  benefit  and  security  of 
*143    creditors,  to  whose  *demands  the  lands 
of  debtors,  held  in  their  own  right, 
are,  by  another  act,  made  liable. 
2d.  For  Vie  benefit  of  pure/wiser*. 

2i!ly.  For  the  information  of  purchasers, 
that  every  one,  who  proposes  to  purchase 
any  land,  may  know  where  to  find  evidence 
of  his  vendor's  title,  and  of  all  incumbrances 
in  any  way  affecting  the  same. 

Species  of  conveyance. — Deeds  of  bargain  and 

sale,  principally  in  view. 

For  attaining  these  ends,  it  is  enacted, 
that  all  detds  or  conveyances,  &c.  Altho' 
this  statute  points  out  no  particular  species 
of  conveyance;  yet  it  is  evident,  that  the 
legislature  had,  principally  in  view,  that 
8p«-cies,  which  is  most  common  in  this  state, 
by  deed  poll,  and  is  called  a  bargain  and  sale; 
in  which  the  tenements  described  in  the 
premises  are  expressed  to  be  bargained, 
sold,  conveyed,  &c.  by  the  bargainer  to  the 

N.  CHIP. 


bargainee;  and   is  executed  by  *the    *144 
bargainer  only;  for  the  execution  of 
the  bargainor  only  is  mentioned. 

But  the  statute  extends  to  all  common  law  con- 
veyances. 

But  any  species  of  conveyance,  which  con- 
tains words,  operative  at  common  law 
to  convey,*  will  be  equally   *  valid;     *145 
provided,  that  each,  and  every  of  the 


*The  deed  of  bargain  and  sale  is  generally  con- 
sidered, by  the  English  law  writers,  as  derived 
from  the  statute  of  27th  of  Henry  8th,  chap.  10. 
called  the  Statute  of  Uses,  and  as  executed  by  force 
of  that  statute.  But  it  was  in  fact  a  common  law 
conveyance,  and  had  its  operation  at  common  law : 
or,  at  least,  upon  common  law  principles,  and  not 
by  force  of  the  statute  of  uses.  The  words  of  that 
statute  are,  "that  where  any  person  stands  or  is 
seized  of  or  in  any  honors,  &c.  lands,  tenements, 
&c.  to  the  use,  confidence,  or  trust  of  any  other 
person  or  persons,  &c.  Such  person  or  persons, 
&c.  that  shall  have  any  such  use,  shall  be  deemed 
and  adjudged  in  lawful  seizin,  &c.  and  the  estate, 
right,  and  possession,  &c.  shall  be  deemed  or  ad- 
judged in  him  or  them,  which  have  the  use, "  &c. 

Where  one  stood  seized  to  the  use  of  a  third  per- 
son, this  statute  executed  the  use  in  the  third  per- 
son, or  rather  gave  him  the  legal  estate ;  but  it 
does  not  extend  to  one,  who  stands  seized  to  his 
own  use.  It  is  probable,  that,  those,  who  intro- 
duced the  clause  in  this  conveyance,  which  ex- 
presses it  to  be  to  the  use  of  the  bargainee,  had 
an  eye  to  the  statute  of  uses ;  but  that  will  not  ex- 
tend the  operation  of  the  statute  to  a  case  not 
within  it.  Some  writers  (vide  Black.  Com.  ii.  p. 
338)  have  supposed  the  bargainor,  by  implication, 
to  stand  seized  to  the  use  of  the  bargainee,  and 
that  then  the  statute  executes  the  use.  But  there 
is  no  room  for  such  implication.  The  words  of  the 
conveyance,  generally,  express  a  direct  transfer 
!  from  the  bargainor,  and  a  departure,  not  only  with 
all  his  right  in  the  premises,  but  with  the  whole 
premises,  to  the  bargainee.  The  truth  is,  that  this 
circuitous  mode  of  reasoning  was  introduced  by 
the  circuitous  modes  of  transfer,  which  had  been 
invented  to  get  over  the  ancient  feudal  restraints 
upon  alienation,  and  to  secure  landed  property 
against  the  perpetual  danger  of  escheats  and  for- 
feitures, to  which  it  was  liable.  The  judges  and 
sages  of  the  law,  habituated  to  pursue  the  rights 
of  real  property,  through  a  thousand  intricate  am- 
bages and  circuitous  labyrinths,  invented  for  the 
purpose  of  evasion,  had  almost  lost  the  idea  of  a 
simple  right,  or  a  direct  mode  of  transfering  such 
right.  ^\  hen  the  feudal  restraints  were  taken  off, 
and  the  right  of  the  tenant  better  secured,  they 
found  it  difficult  to  lay  aside  their  technical  rea- 
sonings. That  the  property  should  pass,  by  a  di- 
rect transfer,  from  the  bargainor  to  the  bargainee, 
as  expressed  in  this  conveyance,  appeared  to  them, 
too  simple  for  a  transaction  of  such  importance. 
They,  therefore,  forced  an  implication,  that  tho 
bargainor  was,  by  virtue  of  tho  bargain  and  sale, 
seized  of  tho  lands  meant  to  be  conveyed,  to  the 
use  of  the  bargainee;  and  then  the  statute,  as  they 
expressed  it,  executed  the  us*',  or  in  plain  English, 
the  property  passed  to  the  purchser.  Vide  note  to 
Coke  Lit.  ^75,  14  Edit. 

25 


145 


N.  CHIPMA^'S  HEPOKTS. 


parties,  from  whom  any  thing  passes  by  the 
grant,  comply  with  the  requisitions  of  the 
statute. 

*146      *Statutes  of  G.  Britain,  as  such,  have  no 

force  in  the  State  of  Vermont. 
I  said,  at  common  law;  for  none  of  the 
statutes  of  Great  Britain,  as  such,  have  any 
force  in  this  state. 

Rules  of  common  law,  which  apply  in  the  titles 

of  lands  are  few. 

The  rules  of  the  common  law,  which,  with 

us,  apply  to  the  transfer,  or  to  the  rights  of  real 

property,  are  few  and  simple.   They  are  those 

only,  which  apply  to  allodial  rights. 

*147     All  landed  property,  in  this  *State,  is 

by  the  constitution   and  laws,  truly 

allodial;  that  is,  absolute  in  the  owner.    He 

does  not  hold,  even  in  idea,  of  a  superior. 

Signing. 

"Signed,  sealed  and  delivered  by  the  parties 
"granting  the  same."  The  party  or  parties 
conveying,  are  to  sign  their  mimes  to  the  in- 
strument, with  their  own  hands;  or  make 
their  marks,  if  they  cannot  write,  which  will 
be  a  sufficient  signing  within  the  meaning  of 
the  statute. 

Sealing. 

Sealing,  since  the  art  of  writing  has  be- 
come generally  known,  the  disuse  of  arms  and 
particular  impressions,  is  nothing  more  than 
a  mere  ceremony;  but  the  common  law  made 
it  essential,  and  the  statute  has  made  it 
equally  necessary  with  signing,  in  instru- 
ments of  conveyance. 

*148        *The  seal  may  be  of  any  thing, 
which  will  adhere  firmly;  but  it  is  not 
deemed  necessary  to  put  a  particular,  or  in- 
deed, any  impression  upon  the  seal. 

Delivery. 

The  deed  must  be  delivered,  that  is,  given 
into  the  hands,  or  possession  of  the  grantee, 
or  of  some  other  person,  for  the  grantee's 
use;  but  no  set  form  of  words  is  necessary, 
in  the  delivery. 

Authority  to  grant.— Restrained  to  the  right  of 
the  grantor. 

"By  the  parties  granting  the  same  having 
"good  and  lawful  authority." — Of  this  word, 
Authority: 

1st.  It  restrains  the  right  passing,  to  such 
right  as  the  grantor  had  in  the  thing  granted. 
It  is  here  thus  guarded,  not  without  reason; 
for  by  the  common  law  of  England,  a  feoff- 
ment  frequently  gave  a  right,  greater  than 

that  of  the  feoff  or ;  and  operated  to  dis- 
*149    continue  the  *estate,  or  take  away  the 

entry  of  third  persons. 

An  exception  of  persons  incapable. 

2dly.  It  operates  as  an  exception  to  con- 
veyances, made  by  persons,  who,  in  law,  are 
considered  as  incapable  of  contracting,  or 
who,  by  reason  of  their  situation,  are  allowed 
to  avoid  their  contracts. 
In/ants. 

Such  are  infants,  whose  acts  are  voidable, 
when  they  come  to  full  age. 

26 


Femes  covert. 

The  acts  of  femes  covert,  and  idiots  are 
absolutely  void. 

Lunatics. 

The  acts  of  lunatics  were,  by  the  English 
law,  voidable,  by  their  heirs;  but  not  by 
themselves,  even  after  they  recovered  their 
reason. 

This  absurd  doctrine  arose  from  a  mere 
sophistical  quibble.  "A  person  could  not 
"plead,  that  he  was  insane,  when  he  did  such 
"an  act;  for  if  he  was  insane,  how  could  he 
"remember  that  he  did  the  act." 

*May  avQid  in  person.  *150 

This,  not  being  founded  on  prin- 
ciples, will  not  be  considered  as  law,  with 
us;  but  acts  done  during  lunacy  may  be 
avoided,  by  the  lunatic,  in  person,  when  re- 
stored to  reason,  or  by  his  heirs. 

Persons  under  duress. 

Persons  under  duress,  may  avoid  any  act 
extorted  from  them  by  force,  or  compulsion. 

Conveyances  by  power  of  attorney. — Power  to  be 
authenticated,  &c. 

3d.  It  gives  a  legislative  sanction  to  con- 
veyances made  by  virtue  of  a  power  of  attor- 
ney from  the  rightful  owner.  For  a  power 
of  attorney  gives,  in  the  legal  sense  of  the 
word,  an  authority;  but  from  the  spirit  of 
the  act,  such  power  of  attorney  must  be  ex- 
ecuted, with  every  requisite  of  a  deed  of 
conveyance,  and  be  authenticated,  by  ac- 
knowledgment and  record,  in  precisely  the 
same  manner. 

*The  word  authority  may  likewise  *151 
be  extended  to  officers,  commissioners, 
and  to  all  persons  empowered  by  law  to  con- 
vey land,  in  which  they  have  no  personal 
interest — and  to  place  conveyances  executed 
by  them,  in  virtue  of  such  power  or  author- 
ity upon  the  same  footing,  in  point  of  for- 
mality, with  other  conveyances. 

Witnesses. — Their  credibility. 

"Attested  by  two  or  more  witnesses,"  by 
subscribing  their  names  to  the  deed. 

The  statute  says  nothing  of  the  credibility, 
or  competency  of  the  witnesses;  but  it  stands 
with  reason,  that  they  should,  at  the  time  of 
attesting,  not  be  persons,  who  by  law  are 
excluded  from  testimony  generally,  or,  who, 
from  their  situation,  would  be  excluded  from 
testimony,  in  respect  to  this  particular 
transaction.  Under  this  *last  de-  *152 
scription,  all  the  parties  to  the  deed, 
or  conveyance,  as  well  as  their  wives,  are  to 
be  excluded  from  attestation. 

Acknowledgment.— Supplied,  in  some  cases,  by 
proof. 

"And  acknowledged  by  such  grantor,  or 
grantors,  before  a  Justice  of  the  Peace." 
The  party  granting  must  personally,  acknowl- 
edge the  instrument  to  be  his  free  act  and 
deed  before  a  Justice  of  the  Peace;  who  is  to 
certify  the  same,  by  indorsement;  but  the 
acknowledgment  may  be  supplied  by  the  oath 

N.  CHIP. 


ON  THE  STATUTE  OP  CONVEYANCES. 


152 


of  the  witnesses,  or  by  other  proof,  in  the 
cases,  and  in  the  manner  specified  in  the  first 
and  second  proviso  in  this  act. 

Effect  of  Hie  acknowledgment. 

Such  acknowledgment  of  the  party  grant- 
ing has  the  force  to  supersede  the  necessity 
of  calling  the  witnesses,  to  prove  the  execu- 
tion of  the  deed,  on  trial;  for  such  acknowl- 
edgment shall  give  it  credit,  prima 
*153  facie,  to  be  *taken  to  have  been  exe- 
cuted, in  the  manner,  and  for  the  pur- 
poses specified  in  such  deed.  It  will  be, 
prima  facie,  evidence  only;  for  any  person 
or  persons,  against  whom  the  deed  shall  be 
produced,  may  impeach  the  execution,  by 
legal  proof. 

The  record. 

"And  recorded  at  length  in  the  town  clerk's 
record,  where  such  houses  or  land  do  lie." 
There  is  afterwards,  a  proviso  in  the  act, 
that  in  towns,  where  there  is,  or  shall  be  no 
town  clerk  elected,  such  grants,  &c.  shall  be 
recorded  in  the  county  clerk's  office  of  the 
county,  where  the  lands  lie.  It  will  not  be 
necessary,  if  after  the  deed  be  once  recorded 
in  the  office  of  the  county  clerk,  there  should 
happen  to  be  a  town  clerk  elected  in  the 
town,  &c.  that  the  deed  should  now  be 
*154  recorded  in  that  office;  and  if  the  *town 
be  set  to  another  county,  the  record 
before  made  is  sufficient — a  deed,  once  re- 
corded, in  the  office  appointed  by  law  at  the 
time,  has  immediately  its  full  operation. 

Operation  of  the  deed,  thus  authenticated. — Su- 
persedes livery  and  attornment. 

A  deed  of  conveyance  thus  signed,  sealed, 
and  delivered  by  the  party  granting,  having 
good  and  lawful  authority,  that  is  capacity, 
right  or  power;  and  attested  by  two  or  more 
legal  witnesses;  acknowledged  or,  as  the  case 
may  be,  proved  before  proper  authority;  and 
recorded  in  the  office  appointed  by  this  act, 
shall  be  valid  to  pass  the  houses  or  lands,  ac- 
cording to  the  intention  of  the  grant,  and 
the  right,  interest,  and  power  of  the  parties 
granting,  "without  any  other  act  or  cer- 
emony in  law  whatever,"  or  which  the  law 

may  have  heretofore  required,  "want 
*155  of  live*ry  of  seisin,  or  attornment  of 

the  possessors  notwithstanding." 

Livery  in  the  feudal  tenures. 

Livery  of  Seisin,  under  the  feudal  domina- 
tion, was  not  a  mere  ceremony,  but  the  very 
act  of  transfering  the  feud,  for  the  intent 
then  expressed,  by  the  person  transfering, 
before  the  peers  of  the  county.  It  was,  at 
first,  by  parole;  afterwards,  by  writing;  and 
was  witnessed  on  the  spot,  by  the  peers,  or 
rather  the  names  of  those  present  were  en- 
tered by  the  clerk,  at  the  foot  of  the  writing, 
which  came  to  be  called  a  deed  of  feoffment, 
or,  by  way  of  eminence,  a  feoffment.  Ac- 
cordingly, livery  of  seisin  is  defined  to  be  "a 
corporal  investiture  of  the  land."  After 
feudal  tenures  were  abolished,  livery  of  seisin, 

N.  CHIP. 


although  a  mere  ceremony,  still  continued  ta 

be  held  necessary,  in  some  instances, 

to  *the  complete  operation  of  a  con-    *15& 

veyance. 

Attornment. 

The  same  may  be  said  of  an  attornment, 
which,  under  certain  circumstances,  came  in 
the  place  of  livery  of  seisin.  Where  the  lord 
aliened  to  a  third  person,  any  lands  in  the 
possession  of  his  tenants,  who  held  of  him 
by  rent,  or  by  any  kind  of  feudal  services, 
the  law  did  not  allow  the  lord  to  make  livery 
of  seisin  on  the  land ;  because  an  entry  on 
the  land,  by  the  lord,  was  held  to  be  a  dis- 
seisin of  the  tenant.  The  attornment  of  the 
tenant  was,  therefore,  introduced,  to  com- 
plete the  title  in  the  alienee,  "and 
was,"  as  Littleton  saith,*  "no  *other,  *157 
in  effect;  but  when  the  tenant  hath 
heard  of  the  grant  made  by  his  lord,  the  ten- 
ant doth  agree,  by  word,  to  the  said  grantee, 
I  agree  to  the  grant  made  to  you,  &c.  But 
commonly  to  say,  Sir,  I  attorn  to  you  by 
force  of  the  said  grant,  or  I  become  your 
tenant;  or  to  pay  a  penny,  &c.  by  way  of 
attornment:"  and  this  attornment  had  th& 
effect  of  livery  of  seisin. 

Intention  of  the  1st  section. 

The  operation  of  this  section  is,  not  to  set 
aside  other  modes  of  conveyance,  before  law- 
ful; but  to  privilege  this  particular  mode — 
to  supersede  all  useless  ceremonies, 
which  had  nothing  *but  a  veneration  *158 
for  antiquity  to  support  them — to 
banish  the  technical,  circuitous  reasoning 
which  had  long  perplexed  the  doctrine  of 
conveyances,  and,  in  this  mode,  to  bring  it 
back  to  common  sense,  to  a  direct  transfer  of 
the  right,  freely,  simply,  and  absolutely. 

2d.  Section. — Conveyance  not  to  be  valid  to  hold; 
unless,  &c.— Mortgages.— Attachment. 

To  render  this  mode  of  executing,  and  au- 
thenticating conveyances  universal,  in  this 
State,  it  is,  in  the  next  section,  enacted, 
"That  no  bargain,  sale,  mortgage,  or  other 
conveyances  of  houses  or  lands,  made  and 
executed  within  this  State,  or  attachment 
served  thereon,  shall  be  valid  in  law  to  hold 
such  houses  or  lands  against  any  other  per- 
son, or  persons,  but  the  grantor,  or  grantors, 
and  defendant,  and  their  heirs  only;  unless 
the  deed,  or  conveyance  thereof,  be  ac- 
knowledged, and  *recorded  in  manner  *15D 
as  is  before  expressed;  or  unless  min- 
utes be  made  of  such  mortgages  in  the  town 
records;  which  minutes  shall  respectively 


*  " Et  attnrnmcnt  ext  mil  autcr  en  effect,  /om/»c 
quant  le  tenant  ad  oye  del  grant  fait  per  xo/i  ««,'/</- 
7u'or,  <iue  menme  le  tenant  mjrca  per  pa  ml  a  le  <Ut 
grant,  xicome  adirc  a  lc  granntee,  Jen  limy  agree 
a  le  grant  fait  a  vou*,  &c.  ou,  Jen  sue  blen  con- 
tent dc  le  grauntfalt  a  voits;  mats  lc  pliiix  com- 
mon atturnemcnt  cut,  adire,  Mir,  Jen  athirnn  a 
VOUH  per  force  del  alt  graunt,  on  jen  de-reigne 
vnstrc  tenant,  «tr'.  ou  llverer,  <il  grantee  nn  denier, 
on,  un  made,  ou  un  fnrthing,  i>cr  roj/<i'  atbirne- 
nii  nt.  Coke  Lilt.  p.  ik/J.  c.  10.  see.  155. 

27 


159 


N.  CHIPMAN'S  REPORTS. 


•contain  the  description  and  boundaries  of  the 
Jand  mortgaged,  the  names  of  the  mortgagors 
and  mortgagees,  the  mortgage  money,  the 
times  when  payable,  and  when  registered; 
or  unless  an  attested  copy  of  such  attach- 
ment, and  the  otiicer's  return  thereof,  be  filed 
in  the  said  town  clerk's  office." 

Operation  of  the  2d.  section. 

The  former  clause  added  little  or  nothing 
to  the  common  law  requisites  of  a  deed  of 
conveyance,  except  the  acknowledgment  and 
record;  and  the  latter  clause  is  confined  to 
the  acknowledgment  and  record  only.  If  a 
conveyance  have  every  other  requisite,  and 

want  these  two,  it  shall  not  be  valid 
*160  *to  hold,  that  is,  it  shall  be  void, 

against  all  creditors  and  subsequent 
purchasers;  but  shall  be  good  against  the 
grantor;  for  he  can  not  be  injured  for  want 
of  notoriety.  It  will  be  good  against  the 
heirs  of  such  grantor;  for,  as  heirs,  they  are 
not  exposed  to  any  injury,  or  loss,  by  the 
neglect. 

Construction. 

Upon  this  clause  there  arise  several  ques- 
tions of  construction,  on  which  the  whole 
beneficial  operation  of  the  act  depends. 

Subsequent  purchaser  without  notice,  if  his  deed 
be  first  recorded,  shall  hold  the  land. 

I.  Suppose  that,  A  conveys  to  B  a  piece 
of  land,  by  deed,  under  his  hand  and  seal, 
properly  attested  and  acknowledged,  and  B 
neglects  to  record  his  deed;  afterwards  C, 
without  any  notice  of  B's  deed,  purchases  of 
A  the  same  lands,  who  executes  to  C  a  good 
deed,  and  acknowledges  it  before 
*161  *proper  authority,  and  the  deed  be  re- 
corded according  to  law — afterwards 
B  procures  his  deed  of  the  same  lands  to  be 
recorded.  The  question  is,  whether,  by  the 
genuine  construction  of  the  statute,  the  title, 
as  against  B,  is  vested  in  C,  on  his  deed  be- 
ing first  recorded. 

The  preamble  will  serve  as  a  key  to  the  in- 
tention of  the  Legislature  on  this  point.  "  To 
the  intent  it  may  be  better  known  what  title, 
or  interest,  persons  have  in  or  to  such  estates 
as  they  offer  to  sale" — As  much  as  to  say, 
"To  the  intent  that  no  purchaser  shall  be  de- 
ceived by  prior  and  secret  conveyances,  which 
he  has  it  not  in  his  power  to  discover,"  let 
all  deeds  and  conveyances  of  houses  or  lands 
be  recorded;  and  if  not  recorded  so  that  sub- 
sequent, bona  fide  purchasers  of  the 
*162  same  *houses  or  lands,  by  repairing 
to  the  records,  may  be  ascertained  of 
such  conveyances;  the  same  shall  not  be 
valid  to  pass;  that  is, against  such  purchaser, 
it  shall  be  utterly  void,  and  the  prior  pur- 
chaser shall  suffer  the  loss  in  consequence  of 
his  own  laches. 

Reason  of  this  construction. 

No  other  construction  can  give  a  bene- 
ficial operation  to  the  statute,  agreeably  to 
the  apparent  intent  of  the  Legislature.  Let 
the  loss  fall  where  the  neglect  has  been. 

28 


If  subsequent  purchaser  neglect,  the  former  may 
hold. 

But  if  C.  neglect  to  record  his  deed,  and 
B's  shall  be  first  recorded,  and  afterwards 
C's — here  there  has  been  a  neglect  in  both; 
and  B,  through  the  laches  cf  C,  having  pro- 
cured his  deed  to  be  first  authenticated  by 
record,  shall  hold  the  land. 

Subsequent  purchase,  with  notice,  fraudulent, 
therefore  void. 

2.  In  the  case  above  put,  if  C  had  full  no- 
tice of  B's  title,  though  the  deed  should 

not  be  *recorded,  and  he  then  proceed     *163 
to  purchase,  and  first  record  his  deed, 
whether  he  shall  hold  the  land  against  B, 
notwithstanding  such  notice? 

No  man  can,  with  a  good  conscience,  take 
advantage  of  the  laches  of  another,  to  his  di- 
rect injury,  unless  where  it  is  an  even  cast, 
that  is,  where  there  must  be  a  loss  on  the 
one  side,  or  the  other.  In  such  case,  the  first 
in  diligence  shall  be  the  first  in  right.  This 
is  frequently  the  case  between  creditor  and 
creditor,  and  sometimes,  between  creditor 
and  purchaser.  The  rules  of  law  ought 
never  to  be  so  construed,  as  to  oppose  the 
nicest  sense  of  moral  obligation.  As  moral- 
ists, we  condemn  the  transaction.  If  we 
refer  to  the  intention  of  the  Legislature,  "to 
the  end  it  may  be  better  known,"  £c. 
it  *is  evident,  that  C,  in  the  case  last  *164 
put,  having  notice  of  B's  previous 
purchase,  was  not  within  the  mischief,  and, 
therefore,  not  within  the  equity  of  the  rem- 
edy. This  was  so  determined  in  the  cause 
of  Morris  ex  dem.  Ludlow  vs.  Gill.  Ante  64. 
Worseley  &  al.  vs.  Demattos  and  Slader.  1 
Burr.  477.  It  is  clear  from  these  principles, 
that  C's  deed,  in  this  case,  as  against  B,  is 
void.  It  is  also  a  fraudulent  conveyance, 
within  the  equity,  if  not  within  the  very  let- 
ter of  the  third  paragraph  of  the  "Act  for 
the  prevention  and  punishment  of  frauds  and 
perjuries." 

WJiere  a  prior  purchaser  conceals  his  purchase, 
to  deceive  a  subsequent  purchaser. 

3.  If,  in  the  case  first  put,  B  not  having  re- 
corded his  deed,  be  present,  and  fully  conusant 
of  C's  purchase,  and  give  C  no  information, 
and  should  immediately  procure  his  deed  to 
be  recorded,  before  C's;  whether  B  should, 
in  this  case,  hold  the  land  against  C? 

*It  is  fraudulent,  and  will  postpone  the      *165 

prior  purchase. 

This  would  clearly  be  a  gross  fraud 
upon  the  statute — It  would  be  making  a  dis- 
honest and  injurious  advantage  of  a  wilful 
neglect.     B's  deed  ought,  in  this  case,  by 
retrospect,   to  be  considered    as    originally 
fraudulent,  and  designed  for  an  imposition, 
and  so  void,  as  against  C.     Ivers  vs.  Chand- 
ler. Ante.  61. 
Meaning  of  the  word  land,  in  this  statute. 

Of  attachments  and  mortgages,  nothing 
need  be  said;  but  it  may  be  necessary  to  ob- 
serve, that  the  word  land,  in  this  statute, 
comprehends  not  only  lands  in  the  literal 
sense  of  the  word,  but  every  interest  in,  or 

N.  CHIP. 


ON  THE  STATUTE  OF  CONVEYANCES. 


165- 


issuing  out  of, land;  and  is  so  far  equivalent 
to  the  word  tenements. 

Grants  of  what  estates  are  comprehended  in  this 
statute. 

It  is,  therefore,  necessary,  that  grants  of 

life  estates,  terms   for  years,  and  all  other 

grants,  which  incumber  the  lands,  or  derive 

to  the  grantee  any  right  to  issue  out  of  the 

land,  should  be  acknowledged  and  re- 

*166    corded,  *or  they  are  not  valid  to  pass 

within  the  statute. 

N.  CHIP. 


A  deficiency  as  to  devises,  and  partition  of  intes- 
tate estates. 

To  complete  the  notoriety  of  titles  to  lands, 
and  bring  the  whole  under  one  view,  the 
laws  are  still  deficient  in  two  instances. 
Wills,  by  which  lands  are  devised,  are  not 
required  to  be  recorded  in  the  same  office 
with  deeds,  nor  the  partition  made,  by  order 
of  the  Judge  of  the  Court  of  Probate,  among 
the  heirs  of  intestates.  The  remainder  of 
this  statute  needs  no  explanation. 

'  29 


A  DISSERTATION 

ON  THE 

STATUTE  OF    OFFSETS. 


*167    *"  An  act  for  allowing  and  regulating 

OFFSETS.  " 
T.  Section.  Clause  L 

By  this  statute  it  is  enacted,  "That  if  the 
plaintiff,  in  any  action  depending  before  any 
court,  on  bond,  bill,  note,  or  other  contract, 
shall  be  indebted  to  the  defendant  in  such 
action,  the  defendant,  after  pleading  the  gen- 
eral issue,  or  confessing  the  plaintiff's  cause 
of  action,  may  plead  an  offset  of  any  sum  or 
sums  due  to  him  from  the  plaintiff,  as  afore- 
said. " 

What  demands  may  offset.— They  must  be  found- 
ed in  contract,  express  or  implied. 

It  is  observable  upon  this  clause, 
*168  that  a  defendant  is  al*lowed  to  plead 
an  offset  in  those  actions,  which  are 
founded  on  contracts  only;  not  in  those, 
which  are  founded  on  torts. — The  words  in- 
debted,due,  are  here  to  betaken,  not  in  their 
appropriate  signification,  as  confined  to  spe- 
cific sums  and  liquidated  demands,  but  more 
generally,  for  any  demand,  which  one  man 
has  against  another,  by  virtue  of  an  express 
or  implied  contract,  whether  of  a  specific 
sum,  or  subject  to  estimation.  The  distinc- 
tion between  debt  and  damage,  docs  not  reach 
the  meaning  of  the  statute.  An  assumpsit 
sounds  wholly  in  damages,  and  yet  is  founded 
on  contract.  An  action  of  debt  lies  against 
an  officer,  for  an  escape,  both  negligent  and 
voluntary,  and  yet  the  action  is  founded  on 
a  tort. — By  a  proper  attention  to  this 
*169  distinction,  we  shall  be  able  to  de- 
termine with  precision,  in  what  kind 
of  actions,  offsets  are  allowed,  and  in  what, 
they  are  not.  The  same  observations  may 
be  applied  to  the  nature  of  the  demand,  which 
the  defendant  is  allowed  to  plead  in  offset; 
for  he  may  plead  an  offset  of  any  sum  or 
sums  due  to  him  from  the  plaintiff,  as  afore- 
said, that  is,  on  bond,  bill,  note,  or  other 
contract. 
2d  Clause. 

"  Which  plea  shall  be  in  the  nature  of  a  dec- 
laration in  one  or  more  counts,  as  the  nature 
of  the  case  may  require;  and,  if  the  plaintiff 
shall  plead  the  general  issue  to  any  or  all  the 
counts  in  the  defendant's  plea,  or  shall  con- 
fess the  cause  of  action  contained  in  any  or 
all  the  counts  in  the  defendant's  plea,  he  may 
in  like  manner  plead  an  offset  of  any 
*170    sum  or  sums  due  *to  him  from  the 
defendant,  as  aforesaid;  and  the  issue 

N.  ClllP. 


and  pleadings  being  closed,  the  jury  shall  be 
directed  to  find  generally  such  sum  or  sums 
as  shall  be  found  in  arrear  from  either,  and 
judgment  shall  be  rendered  thereon  accord- 
ingly." 

By  this  clause,  the  plaintiff  is  allowed  to 
reply  to  the  defendant's  plea  of  offset,  by  of- 
fering in  the  same  manner,  to  offset  any 
further  demand,  which  he  may  have  against 
the  defendant,  of  the  same  nature;  that  is, 
any  demand  arising  on  contract. 

Beneficial  law. 

This  is  indisputably  one  of  the  most  eq- 
uitable and  beneficial  laws  to  be  found  in  any 
code.   It  is  calculated  on  the  maxim,  Interest 
republican,  ut  finis  sit  litium — "It  is  the  in- 
terest of  the  State  to  terminate  litigations. " 
It  serves  to  control  the  litigious  spirit 
of  suitors,  by  in*volving  their  interest    *171 
alternately  in  a  full  settlement  of  every 
litigated  demand,  with  a  great  saving  both 
of  time  and  expence. 
Demand  must  be  in  the  same  right. 

One  distinction  relating  to  the  right,  in 
which  any  demand  is  claimed  to  be  due, 
though  not  expressed  in  the  statute,  exists  in 
the  nature  of  the  thing.  The  demands  of 
both  plaintiff  and  defendant  must  be  mutual, 
that  is,  in  the  same  right,  or  they  will  not  be 
allowed  to  offset  one  against  the  other. 

Executors  and  administrators. 

To  illustrate  this  by  example — A,  as  ex- 
ecutor or  administrator  of  B,  brings  a  suit 
against  D,  for  a  debt  due  to  his  testator,  or 
I  intestate.  Here  A  brings  the  action,  in  alieno 
jure;  he  represents  the  right  of  another.    In 
this  case,  D  may  offset  any  demand  which  he 
has  against  A,  in  the  same  right,  as 
executor  *or  administrator  of  B;  but     *172 
no  demand  which  is  personal  of  A. 
Nor  can  A  reply  in  offset  against  D,  any  de- 
mand existing  in  his  own  right,  but  is  con- 
lined  to  such  only,  as  he  claims  in  right  of 
his  testator,  or  intestate. 
Heads  of  corporation*,  trustees,  Ac. 

The  same  rule  holds  in  all  actions  for  or 
against  heads  of  corporations,  trustees,  as- 
signees of  bankrupts,  and  all  persons  who 
represent  the  rights  of  others. 
Reason  of  this  construction. 

This  construction  is  necessary  to  prevent 
a  perpetual  confusion,  and  even  violation  of 
rights.  It  would  be  grosly  unjust  in  a  trus- 

31 


172 


N.  CHIPMAN'S  REPORTS. 


tee,  to  apply  the  trust  to  his  own  benefit; 
and  it  would  be  no  less  unjust  in  the  law  to 
jiliow,  much  more,  to  compel  such  applica- 
tion. The  manner  of  pleading,  and  the  duty 
of  the  jury,  are  pointed  out,  too  clearly  to 
need  any  illustration. 

•173      "Section  II. 

"  That  where  there  are  mutual  judg- 
ments between  the  same  parties,  in  any  court 
(in  the  same  court)  such  court  may,  on  mo- 
tion of  either  party,  offset  such  judgments 
against  each  other,  and  execution  shall  issue 
for  the  balance  only." 

Here  it  is  expressed,  that  the  judgments 
to  be  offset  against  each  other,  be  mutual. 
This  is  to  be  understood,  that  they  be  be- 
tween the  same  parties,  in  the  same  right, 
as  was  observed  on  the  first  paragraph. 

Proviso. 

"Provided,  that  no  sum  due  on  account, 
the  balance  whereof  shall  not  be  ascertained 
under  the  hand  or  hands  of  the  party  or 
parties;  nor  any  bond,  bill,  note,  or  other 
contract,  not  due  or  payable  before  the  com- 
mencement of  the  plaintiff's  action;  nor  any 

bill  or  note  sold,  endorsed,  or  assigned 
*174  to  *the  plaintiff  or  defendant;  shall 

be  allowed  in  any  plea  of  offset,  un- 
less it  shall  appear  on  trial,  that  notice  of 
such  sale,  endorsement  or  assignment  was 
given  by  the  party  holding  such  bill,  or  note, 
to  the  opposite  party,  before  the  commence- 
ment of  the  plaintiff's  action,  which  in  such 
case  shall  be  taken  to  be  the  day  of  serving 
the  original  writ  in  the  action." 

Accounts. 

A  sum  due  on  account,  and  acknowledged 
under  the  hands  of  the  parties,  or  the  hand 
of  the  party,  against  whom  the  demand  ex- 
ists, is  on  a  footing  with  other  contracts;  but 
where  the  account  is  still  open,  a  different 
mode  of  trial  is  allowed,  and  the  parties  are, 
for  certain  purposes,  admitted  to  their  oaths. 
It  would  therefore  create  much  confusion 

to  allow  such  accounts  to  be  plead 
*175  *in  offset  in  actions,  which  have  a 

different  mode  of  trial,  and  a  different 
mode  of  proof. 

Contracts  not  due,  <fcc. 

The  parties  are  not  allowed  to  offset  any 
demand,  which  was  not  payable  before  the 
commencement  of  the  plaintiff's  action. 
Probably  the  legislature  considered,  that  as 
such  debts  were  not  made  payable  at  the 
same  time,  the  parties,  in  their  contracts  had, 
not  in  contemplation  a  mutual  credit,  and 
it  would  be  hard  that  the  plaintiff  should  be 
over  balanced  and  subjected  to  costs,  by  rea- 
son of  a  demand,  which  did  not  exist,  in 
force,  at  the  time,  when  he  commenced  his 
action. 

Quere. 

Might  it  not,  however,  have  been  better, 
both  in  a  public  and  private  view,  that  such 
demand  should  have  been  allowed  to  the 


time  of  trial,  saving  the  costs  to  the  party, 
against  whom  it  should  be  produced? 

*0f  endorsed  notes  &  bills.  *176 

It  is  a  very  just  and  equitable  pro- 
vision, that  no  bills  or  notes  sold,  endorsed, 
or  assigned  to  either  party,  should  be  allowed, 
in  any  plea  of  offset;  unless  notice  of  such 
sale  and  endorsement  or  assignment  shall 
have  been  given  by  the  party  holding  the 
same,  to  the  opposite  party,  before  the  com- 
mencement of  the  plaintiff's  action :  were  it 
otherwise,  one  of  the  parties  might,  by  secret 
purchases  of  such  bills  or  notes,  often  un- 
expectedly, and  indeed  unjustly,  subject  the 
other  to  costs.  It  is  much  more  agreeable  to 
the  principles  of  right,  that  the  debtor  should 
employ  his  property  directly,  in  the  paymenu 
of  his  debts,  than  that  he  should  attempt  it  in 
a  circuitous  way,  by  such  purchases,  and  with 
an  expence  and  cost  to  the  creditor. 

*By  bills  and  notes  in  the  proviso,  are  to      *177 
be  understood  those,  which  are  nego- 
tiable. 

The '  Bills '  and « Notes,'  in  the  proviso,  are 
attended  with  no  descriptive  words,  which 
may  serve  to  designate  the  particular  species 
here  intended. — It  may,  however,  be  col- 
lected, both  from  the  reason  of  the  thing, 
and  from  the  former  part  of  the  statute,  taken 
in  connection  with  the  proviso.  They  must 
be  bills  and  notes,  on  which  the  party  plead- 
ing can  demand  in  his  own  name;  on  which 
the  law,  agreeably  to  principles  already  exist- 
ing,  would  establish  in  him  a  right  of  action, 
against  the  other  party,  in  virtue  of  the  en- 
dorsement. Such  are  those  bills  and  notes 
only,  which  are  called  negotiable.  This  in- 
cludes all  bills  and  notes,  which  are  made 
payable,  to  any  person  or  order. 

*The  proviso  gives  nothing;  but  limits  an      *178 

antecedent  right. 

It  is  obvious  to  observe,  that  the  proviso 
gives  no  right;  but  that  it  limits  a  right, 
supposed  already  to  exist.  It  limits  the  gen- 
erality of  the  impression  in  the  first  clause. 
It  is  there  said,  that  if  the  plaintiff  in  any 
action,  &c.  be  indebted  to  the  defendant  in 
such  action,  the  defendant,  after  pleading, 
&c.  may  plead  an  offset  of  any  sum  or  sums 
due  to  him  in  like  manner,  that  is,  on  bond, 
bill,  note,  or  other  contract.  This  clause 
gives  the  parties  a  different  mode  of  effect- 
uating their  demands,  but  gives  them  no  new 
personal  right  in  any  contract. 

The  parties  are  not  to  plead  in  offset  debts  due 
to  others. 

The  parties  are  not  authorized  to  plead  in 
offset  a  debt  due  to  others,  but  debts  severally 
due  to  themselves.  Every  other  bill  or  note", 
whatever  assignments  or  endorsements  may 
have  been  made,  or  powers  of  the 
*most  ample  kind  given,  to  the  payee,  *179 
the  assignee,  or  indorsee,  remains,  in 
consideration  of  law,  as  between  the  parties 
originally  contracting,  the  debt,  contract 
and  demand  of  the  indorser,  to  whom  the 
bill  or  note  was  first  and  alone  made  payable. 
Negotiable  bills  and  notes  must  have  been 

N.  CHIP. 


ON  THE  STATUTE  OF  OFFSETS. 


179 


alone  in  contemplation  of  the  legislature,  in 
this  proviso;  for  it  would  have  been  unnec- 
essary, and  even  absurd  to  regulate  or  limit 
those  matters  in  a  proviso,  which  were  not 
introduced  in  the  body  of  the  act,  and  upon 
which  the  proviso,  therefore,  could  not  op- 
erate. 

N.  CHIP. — 3  t 


These  observations  may  appear  superfluous 
to  professional  men,  but  I  thought  it  nec- 
essary to  be  thus  particular,  in  this 
*point,  because  the  question  has  been    *180 
agitated  in  the  lower  courts,  some  of 
which  have  put  a  different  construction  on 
the  act. 

83 


A  DISSERTATION 

ON   THE 

NEGOTIABILITY  OF  NOTES. 


•181       *Propositlons    to  be  considered. — 1.  On 

the  British  law.— 2.  On  principles. 
It  is  proposed,  first,  to  take  a  brief  view 
of  the  laws  and  practice  upon  promissory 
notes,  payable  to  order,  or  bearer,  as  estab- 
lished in  Great  Britain;  and,  secondly,  to 
consider  them  upon  principles,  independent 
of  established  laws  and  customs. 

OF  THE    LAWS   AND  PRACTICE    UPON  PROM- 
ISSOBY  NOTES  IN  GREAT  BRITAIN. 

*182      *Brltlsh  law  on  notes. 

In  Great  Britain,  there  are  two  kinds 
of  promissory  negotiable  notes;  the  one  pay- 
able to  some  person,  to  A.  B.  for  instance, 
or  his  order;  the  other  to  A.  B.  or  bearer. 
Notes  payable  to  order  had  been  held  to  be 
negotiable  by  endorsement,  at  common  law, 
as  was  observed  in  the  case  of  Nicholson  vs. 
Sedgwick;  and  actions  had  been  sustained 
by  the  endorsee  of  such  notes  against  the 
maker.  1.  Ld.  Raym.  180.  In  the  same 
case  it  was  said,  that  an  action  had  never 
been  allowed  in  the  name  of  the  bearer,  as 
such ;  and  it  was  determined  accordingly  in 
that  case. 

Ricjhts  of  the  endorsee  on  these  notes,  not  settled 
at  common  law. 

It  was  not,  however,  settled  for  law,  that 
the  endorsee  of  a  note  payable  to  order,  might 
maintain  an  action  against  the  maker,  till 
the  statute  of  the  3  and  4  of  Anne. — This 

statute  recites,  that 

*183  *"  Whereas  it  hath  been  held  that 
"notes  in  writing,  signed  by  the  party 
"who  makes  the  same,  whereby  such  party 
"promises  to  pay  unto  any  other  person,  or 
"his  order,  any  sum  of  money  therein  men- 
"tioned,  are  not  assignable  or  endorsible 
"over,  within  the  custom  of  merchants,  to 
"any  other  person;  and  that  such  person  to 
"whom  the  sum  of  money  mentioned  in  such 
"note  is  payable,  cannot  maintain  an  action 
"by  the  custom  of  merchants,  against  the 
"person  who  first  made  and  signed  the  same; 
"and  that  any  person  to  whom  such  note 
"shall  be  assigned,  endorsed,  or  made  pay- 
"able,  could  not,  within  the  said  custom  of 
"merchants,  maintain  any  action  upon  such 
"note  against  the  person  who  first 
*184  "drew  and  *sign«>d  the  same;  there- 
fore, to  the  intent  to  encourage  trade 
"and  commerce,  which"  (as  it  is  there  said) 

N.  CHIP. 


"will  be  much  advanced,  if  such  notes  shall 
"have  the  same  effect  as  inland  bills  of  ex- 
Change. " 
Enacting  part. 

"It  is  enacted,  That  all  notes  in  writing, 
"that  shall  be  made  and  signed  by  any  per- 
"son  or  persons,  body  politic  or  corporate, 
"or  by  the  servant,  or  agent,  of  any  corpo- 
" ration,  banker,  goldsmith,  merchant,  or 
"trader,  who  is  usually  entrusted  by  him, 
"her,  or  them,  to  sign  such  promissory  notes 
"for  him,  her,  or  them,  whereby  such  person 
"or  persons,  body  politic  and  corporate,  his, 
"her,  or  their  servant,  or  agent,  as  afore- 
"said,  doth  or  shall  promise  to  pay  any  other 
"person  or  persons,  body  politic  and 
"corporate,  his,  her,  or  *their  order,  *185 
"or  unto  bearer,  any  sum  of  money 
"mentioned  in  such  note,  shall  be  taken  and 
"construed  to  be  by  virtue  thereof,  due  and 
"payable  to  any  such  person  or  persons,  body 
"politic  and  corporate,  to  whom  the  same  is 
"made  payable;  and  also  every  such  note, 
"payable  to  any  person  or  persons,  body 
"politic  and  corporate,  his,  her,  or  their  or- 
"der,  shall  be  assignable  and  endorsible  over, 
"in  the  same  manner  as  inland  bills  of  ex- 
"  change  are,  or  may  be,  according  to  the  cus- 
"tom  of  merchants;  and  that  the  person  or 
"persons,  body  politic  and  corporate,  to  whom 
"such  sum  of  money  is,  or  shall  be,  by  such 
"note,  made  payable,  shall  and  may  maintain 
"an  action  for  the  same,  in  such  man- 
"ner  as  he,  she,  or  they  *might  do  *186 
"upon  an  inland  bill  of  exchange, 
"made  or  drawn  according  to  the  custom  of 
"merchants,  against  the  person  or  persons, 
"body  politic  and  corporate,  who,  or  whose 
"servant,  or  agent,  as  aforesaid,  signed  the 

i  "same;  and  that  any  person  or  persons,  body 
"corporate  and  politic,  to  whom  such  note, 

j  "that  is  payable  to  any  person  or  persons, 
"body  politic  and  corporate,  his,  her,  or  their 

,  "order,  is  endorsed  or  assigned,  or  the  money 
"therein  mentioned  ordered  to  be  paid  by 

i  "endorsement  thereon,  shall  and  may  main- 

1  "tain  his,  her,  or  their  action,  for  such  sum 
"of  money,  either  against  the  |>erson  or  per- 
"sons,  body  |M>litic  and  corporate,  who,  or 
"whose  servant,  or  agent,  as  aforesaid, 
"signed  such  note,  or  against  any  of 
*"  the  persons  that  endorsed  the  same,  *187 
"in  like  manner  as  in  case  of  inland 

35 


187 


N.  CHIPMAN'S  REPORTS. 


"bills  of  exchange;  and  in  every  such  action, 
"the  plaintiff  or  plaintiffs  shall  recover  his, 
"her,  or  their  damages,  and  costs  of  suit." 

I  have  inserted  this  statute  at  large,  be- 
cause it  shews  the  situation  of  these  notes  at 
common  law,  and  the  grounds  of  subsequent 
decisions  in  their  courts,  upon  this  subject. 

After  this  act,  no  question  was  made  at  common 
law. 

After  this  act,  no  farther  question  was 
made,  whether  such  notes  were  assignable 
upon  common  law  principles.  It  was  suffi- 
cient, that  they  were  assignable  by  the  stat- 
ute, which  put  them  on  the  footing  of  inland 
bills  of  exchange,  the  law  of  which  had  long 
been  pretty  well  settled. 


*188 


*OF   THE  NOTE. 


Resemblance  of  a  promissory  note  en- 
dorsed, to  a  Mil  of  exchange. 
While  a  promissory  note,  payable  to  order, 
remains  in  the  hands  of  the  original  payee, 
it  takes  none  of  the  properties  of  a  bill  of  ex- 
change, except  its  negotiability.  When  it  is 
once  endorsed,  it  has  the  principal  properties 
of  a  bill  of  exchange.  The  endorser  becomes 
a  drawer,  as  well  as  an  endorser. — The  en- 
dorsee is  the  payee;  and  the  maker  is  the 
drawee,  with  this  distinction,  that  as  between 
him  and  the  endorsee,  he  has  already  accepted 
the  draught. — 2  Burr.  676.  Heylyn  et  al.  vs. 
A  damson. 

OF  THE   ENDORSEMENT. 

Endorsement  may  be  struck  out. 

If  a  note  have  been  endorsed  to  a  third 

person,  and  not  paid,  the  endorser  may  strike 

out  the  endorsement,  and  recover  in  his  own 

name.    The  endorsement  is  a  direction 

*189    to  the  maker,  to  *pay  the  contents  to 

a  third  person,  the  endorsee. 
May  be  endorsed  from  one  endorsee  to  another. 

Every  endorsee  has  the  same  right  to  en- 
dorse the  note  over,  as  the  original  holder. 

It  is  usual  for  the  endorser  to  sign  his 
name  blank,  on  the  note,  to  be  filled  on  occa- 
sion; which  may  be  done  at  any  time  before 
the  cause  goes  to  trial  to  the  jury. 
By  administrators,  &c. 

The  endorsement  by  any  person,  who  might 
himself  maintain  an  action  on  the  note,  is 
good  to  transfer  the  right  to  the  endorsee; 
as,  by  an  administrator,  on  a  note  given  or 
endorsed  to  his  intestate,  (2  Stran.  1260;)  or 
by  the  husband,  on  a  note  given  or  endorsed 
to  the  wife,  while  sole:  but  the  declaration 
must  agree  with  the  case. 

*190    *ENDORSEB  AND  ENDORSEE. 

Endorser  is  a  warranter. 
The  endorser  is  considered  as  warranting 
the  note,  on  failure  of  payment  by  the  maker. 
It  is  incumbent  on  the  endorsee  to  use  due 
diligence  to  obtain  the  money  of  the  maker. 
He  must  apply,  and  make  demand  of  pay- 
ment of  the  maker,  unless  he  have  absconded ; 
in  which  case  he  may  go  upon  his  endorser, 

36 


without  an  actual  demand,  which  he  could: 
not  possibly  make. 

Endorsee  must  use  due  diligence  or  the  endorser 
is  discharged. 

The  endorsee  must  not  neglect  an  unrea- 
sonable time,  or  give  farther  time  of  pay- 
ment to  the  maker;  if  he  do,  it  is  at  his  own 
peril;  he  takes  all  the  risk  upon  himself,  and 
shall  never  resort  to  the  endorser. — 2  Burr. 
676.  Heylyn  et  al.  vs.  Adamson. 

Receiving  part  of  the  money  of  the  maker  held  to 
discharge  the  endorser. 

It  has  been  held,  that  if  the  endorsee  re- 
ceive any  part  of  the  money  of  the  maker, 
the  endorser  is  absolutely  discharged; 
*for  that  credit  is  thereby  given  to     *191 
the  maker.     2  Stran.  745.  Kellock  vs. 
Robinson. 

Contrary  opinion. 

The  contrary  has  likewise  been  holden, 
which  seems  to  be  the  most  reasonable  opin- 
ion. Bui.  n.  p.  271.  2  Wils.  262.  Johnson 
vs.  Kennion. 

On  a  bill  of  exchange. 

It  is  clearly  for  the  advantage  of  the  en- 
dorser, that  any  part  of  the  money  should  be 
received.  It  is  probable,  that  the  circum- 
stance of  giving  farther  time  of  payment, 
being  generally  connected  with  that  of  re- 
ceiving part  of  the  money,  gave  rise  to  the 
former  opinion. 

General  endorsement  to  be  taken  according  to  the 

tenor  of  the  note. 

If  the  endorsee  have  used  due  diligence  to- 
demand  the  money  of  the  maker,  and  the 
maker  refuse,  or  neglect  to  pay,  the  endorsee 
has  a  right  of  action  against  the  endorser.  If 
a  note,  payable  at  a  future  day,  be  endorsed 
generally,  it  is  an  endorsement  to  pay  accord- 
ing to  the  tenor  of  the  note.  No  laches  can 
be  imputed  to  the  endorsee,  until  the 
note  become  *payable.  *192 

Money  appointed  to  be  paid  before  the 

note  is  payable.    Endorser  holden  to  his  time. 
If  the  endorser  appoint  the  money  to  be 
paid  at  an  earlier  day,  though  the  endorsee 
may  safely  wait  till  the  note  become  payable, 
before  he  demand  the  money,  yet  he  is  not 
obliged  to  give  this  time  to  the  endorser.    He- 
may,  if  the  maker  refuse  payment,  resort  to 
the  drawer,  at  the  time  set  in  the  endorse- 
ment. 
Endorsement  of  notes  payable  to  bearer. 

A  note  payable  to  A  B,  or  bearer,  may  be 
endorsed;  and  the  endorsement  will  be  a 
good  warranty,  as  in  the  case  of  a  note  pay- 
able to  order;  but  an  endorsement  is  not 
necessary  for  transfering  a  right  of  action 
against  the  maker.  Such  right,  according 
to  the  tenor  of  the  note,  passes  by  delivery 
from  hand  to  hand.  These  notes  art',  in 
many  respects,  like  bank  bills,  or  bills  of 
public  credit.  When  passed  without 
*193  endorsement,  *they  are,  in  the  same 
manner,  at  the  risk  of  the  bearer,  as. 
to  the  ability  of  the  maker. 

N.  CHIP. 


ON  THE  NEGOTIABILITY  OF  NOTES. 


193 


OF   PAYMENT. 

Payment  to  the  original  payee,  or  a  dis- 
charge by  him  to  the  maker,  seems  to  have 
been  admitted  as  a  good  defence  to  the  maker. 
But  it  was  admitted  with  great  caution. 
The  note  must  have  been  in  the  hands  of  the 
payee,  at  the  time  of  the  discharge  or  pay- 
ment. The  burden  of  proof,  in  this  point, 
\vas  thrown  on  the  maker.  It  was  of  no 
avail,  that  he  had  not  notice  of  an  indorse- 
ment; so  that  it  was  almost  impossible  to 
avoid  a  second  payment.  Hence  an  opinion 
has  prevailed  with  many,  that  such  defence 
was  not  admissible. 

*194      *TIIE  NEGOTIABILITY  OF  NOTES,  CON- 
SIDERED  ON  PRINCIPLES. 

There  is,  in  this  State,  no  statute  directly 
authorising  the  Negotiability  of  Notes;  nor 
have  there  been  any  leading  decisions  in 
point.  In  England,  it  was  formerly  doubted, 
not  only,  whether  the  endorsee  of  a  note 
could,  in  his  own  name,  maintain  an  action 
against  the  maker,  but  whether  this  could  be 
done  by  the  original  payee,  on  the  note  itself. 
'  The  statute  of  the  3  and  4  Ann.  recites  these 
difficulties,  and  provides  a  like  remedy  in 
both  cases. 

It  is  not  now  doubted,  but  that  a  declara- 
tion on  a  note  is  good,  and  that  the  payee 
may,  on  common  law  principles,  maintain  an 
action  on  the  note  against  the  maker. 

*195      *Holt  opposed  to  the  action  on  note.  L. 

Rayrn.  157. 

Lord  Holt  was  strenuously  opposed  to  such 
action.  At  the  same  time  he  allowed  the 
note  to  be  good  evidence  on  an  indebitatus 
assutnpxit.  The  true  reason  was,  that  notes 
having  been  but  recently  introduced,  no  pro- 
vision had  been  made  by  the  ancient  rules  of 
law,  for  this  form  of  action.  It  is  clearly 
one  of  those  cases,  in  which  forms  were  long 
allowed  to  control,  and  sometimes  even  to 
exclude  principles. 

Objection  to  the  negotiability  of  notes,  a  chose  in 

action  not  transferable. 

As  to  the  negotiability  of  notes,  the  great 
objection  was,  that  they  were  mere  c?ioses  in 
action;  and  it  was  a  maxim  of  law,  that  a 
chose  in  action  cannot  be  transfered.  In  the 
case  of  bills  of  exchange,  the  custom  of  mer- 
chants had  prevailed  against  the  maxim;  and 
they  had  long  been  holden  to  be  transferable 
by  endorsement. 

*1W      *'llicy  were  not  cstalilishcd  by  the  common 
law  practice  in  England. 

Before  the  3  and  4  of  Ann.  promissory 
notes  had  been  introduced,  and  the  merchants 
had  attempted,  to  make  them  negotiable  by 
endorsement;  but  their  negotiability  had  not 
been  steadily  allowed  in  the  courts  of  law,  as 
was  observed  above.  It  cannot,  therefore, 
be  said  to  have  been  established  by  the  prac- 
tice of  the  common  law,  and  to  have  passed 
to  us  through  that  channel.  The  idea,  how- 
ever, lias  not  a  little  prevailed,  that  notes, 
payable  to  order,  are  negotiable,  and  endor- 

N.  CHIP. 


sees  have,  in  some  instances,  maintained  ac- 
tions upon  them,  in  the  lower  courts,  in  their 
own  names. 

With  us,  it  must  depend  on  principles. 

If  such  action  can  be  maintained  in  this 
State,  it  must  be  on  principles  of  right,  aris- 
ing from  the  nature  of  the  transaction 
itself.    We  will  enter  a  *little  more  at    *197 
large  into  this  subject,  and  see  if  we 
|  can  discover  principles,  which  will  be  sum 
j  cient  to  support  the  negotiability  of  notes, 
|  and  how  far  such  principles  extend. 

The  contract  as  expressed  in  the  note. 

The  form  of  the  contract  between  the  maker 
arid  the  original  payee,  is  this :  Value  received, 
f  promise  to  pay  to  A  B,  or  order,  ten  pounds, 
lawful  money,  one  month  after  date. 

Explained. 

The  substance  of  which  may  be  thus  ex- 
pressed:— "Whereas  I,  C  D,  am  indebted  to 
A  B,  in  the  sum  of  ten  pounds,  lawful 
money,  I  promise  and  engage  to  pay  to  A  B, 
the  sum  of  ten  pounds,  in  one  month  from 
the  date  hereof;  or,  if  it  shall  be  more  con- 
venient for  A  B,  I  will  pay  it  to  any  one, 
whom  A  B  shall,  by  his  order,  appoint;  and 
any  person,  who  will,  by  satisfying 
A  B  for  the  contents,  procure  *his  or-  *198 
der  therefor,  shall  be  entitled  to  receive 
the  aforesaid  sum  of  ten  pounds,  in  the  place 
of  AB." 

It  clearly  implies  this  general  proposal, 
that  if  any  person  will  pay  to  A  B,  the  con- 
tents of  the  note,  the  maker  will,  on  the  pro- 
ducing of  the  note,  and  an  order  endorsed 
accordingly,  pay  to  such  person  the  full  sum 
due. 

Indorsee  is  equitably  entitled  according  to  the 

tenor  of  the  contract. 

It  is  clear,  then,  that  by  complying  with 
the  proposal,  paying  the  debt  to  A  B,  and 
taking  his  order;  such  third  person,  the  en- 
dorsee, acquires  an  equitable  right  to  demand 
the  money  of  C  D,  according  to  the  tenor  of 
his  engagement.  The  endorsee  has  paid  the 
debt  of  C  D,  and  taken  the  order,  with  his 
approbation;  not,  indeed,  a  particular,  but  a 
general  approbation. 

*The  maker  has  given  the  payee  a  power      *199 
to  appoint  the  ixiymcnt  to  a  third  per- 
son.— Appointment  yood  to  vest  a  riyht. — Even 
where  the  iHsininor  ha*  no  interest. 
From  the  nature  of  the  contract,  fairly  ex- 
pressed, C  B  has  given  to  A  B,  a  power  of 
appointing  a  third  person,  who  shall  demand 
the  money  to  his  own  use.     In  other  cases, 
!  such  appointments  have  been  holden  good, 
!  to  vest  a  right  in  the  appointee.   In  a  family 
|  settlement,  a  sum  of  money  is  to  be  paid  to 
such  person  as  1*  shall  appoint.     P  appoints 
it  to  be  paid  to  S.    In  this  case,  a  right  vests 
j  in  S,  on  the  appointment  of  P,  to  demand 
|  the  money,  and  that  without  any  act  done, 
or  consideration  advanced  on  the  part  of  S. 
It  matters  not,  whether  the  right  of  S  be  at 
law,  or  in  equity.     Jt  is  now   well  agreed, 
1  that  a  right,  which  is  sutlicient  to  found  a 

37 


199 


N.  CHIPMAN'S  REPOETS. 


decree  in  equity,  is  sufficient  to  support  an  ac- 
tion at  law.  In  the  case  here  put,  the 
*200  nominor  has  no  interest  in  the  *money. 
He  lias  only  a  naked  power  of  appoint- 
ment. This  is,  certainly,  going  farther  than 
the  case  of  negotiable  notes — Here  the  orig- 
inal payee  has  an  interest  in  money,  as  well 
as  a  power  of  appointment.  He  may  either 
receive  the  money  himself,  which  will  dis- 
charge the  whole  contract,  and,  consequently, 
the  right  of  appointment;  or,  he  may  appoint 
it  to  be  paid  to  a  third  person,  by  endorse- 
ment. 

The  indorsee  is  an  appointee  for  a  valuable  con- 
sideration. 

It  is  still  a  stronger  case  for  the  endorsee, 
that  he  is  an  appointee,  for  a  valuable  con- 
sideration. 

Analogy  to  tlie  case  of  an  agent,  &c. 

There  is,  likewise,  as  to  the  right  of  the 
endorsee,  an  analogy  to  the  case  of  a  person 
contracting  with  a  servant,  agent,  or  factor. 
If  A  give  to  C,  a  credit  to  make  certain  con- 
tracts on  his,  A's  account,  and  this 
*201  credit  be  held  out  to  the  pub*lic,  or  to 
individuals,  With  whom  C,  the  agent, 
negociates,  those,  who  contract  with  C,  on 
that  credit,  will  have  good  right  against  A, 
although  they  might  never  have  seen  him. 
The  case  on  a  negotiable  note,  does  not  go 
farther.  The  maker  empowers  the  Original 
payee  to  make  a  contract,  which  shall  bind 
him,  the  maker,  viz.  to  make  an  order  to  a 
third  person,  the  endol-see,  upon  such  con- 
sideration as  he  shall  choose,  and  engages  to 
pay  the  order. 

Maker  is  holden  to  the  indorsee  precisely  as  the 
acceptor  of  a  bill  of  exchange  to  payee. 
After  all,  no  two  cases,  as  to  original 
principles  of  right,  can  be  more  precisely  the 
same,  than  the  case  between  the  payee,  and 
acceptor  of  a  bill  of  exchange;  and  the  case 
between  the  endorsee,  and  the  maker  of  a 
promissory  note,  payable  to  order.     The  en- 
dorsement is,  to  every  intent,  a  bill  of 
*202    exchange.     The  *note  authorises  the 
draft,  and  contains  a  previous  accept- 
ance,  subject,   perhaps,   to    one   condition, 
which  will  hereafter  occur. 

A  previous  agreement  to  accept,  is  an  acceptance. 
Havens  vs.  Griffin,  ante.  43. 

It  was  judged,  upon  the  best  ground,  in 
the  case  of  Pttlans  and  Rose,  vs.  Van  Mierop 
and  Hopkins,  that  an  agreement  to  accept  a 
bill  to  be  drawn,  was  an  acceptance  to  bind 
the  drawee,  when  the  bill  should  be  drawn 
accordingly.  3  Burr.  1664. 

Fenner  vs.  Hears. — is  a  similar  case  as  to  prin- 
ciples 2  Bloc.  rep.  1269. — An  endorsement  on  a 
bond  promising  to  pay  to  any  person  to  whom 
the  bond  should  be  assigned,  binds  to  pay  to 
the  assignee. 

The  same  principle,  which  applies  to  the 
negotiability  of  notes,  was  adopted  or  con- 
ceded by  the  Judges  of  the  Common  Pleas, 
in  the  case  of  Fenner  vs.  Mears.  Hears  bor- 
rowed of  Cox,  on  two  respondentia  bonds, 
upon  an  India  voyage,  £.1000:  and  to  enable 


Cox  to  raise  money  by  an  assignment  of  the 
bonds,  signed  hereon  an  endorsement  to  the 
following  purport;  that  the  sum  con- 
tained was  due  *to  Cox,  and  that  he  *203 
would  pay  the  same  to  Cox's  assignee, 
without  any  deduction  or  abatement.  After- 
wards, Fenner  advanced  money  to  Cox,  upon 
an  assignment  of  these  bonds.  Mears  re- 
turned with  the  ship,  having  performed  the 
voyage;  and  Fenner,  by  one  Evans,  informed 
him  of  the  assignment,  and  requested  pay- 
ment. Mears  desired  time,  and  that  Fenner 
would  not  sue  him;  but  delaying  payment, 
Fenner  brought  an  action  against  him  for 
money  had  and  received.  There  was  a  ver- 
dict for  the  plaintiff,  and  a  motion  for  a  new 
trial,  because,  it  was  said,  the  endorsement 
on  the  bonds  could  not  make  them  assign- 
able, so  that  Fenner  could  recover  in  his  own 
name. 

Judge  Blackstone  observed,  that  from  a 
caution,  lest,  by  turning  a  specialty 
debt,  by  *assignment,  into  a  simple  *204 
contract,  some  consequences  might 
arise,  which  he  could  not  then  foresee,  rather 
than  from  any  great  doubt  attending  the  case, 
he  chose  to  go  on  clearer  grounds  in  deter-' 
mining  the  particular  question.  He  was  of 
opinion,  that  Mears  had  made  a  sufficient 
promise,  after  his  return.  Chief  Justice  De 
Gray,  and  Justice  Nares,  held  clearly,  that 
Fenner  had  a  good  right  of  action,  in  virtue 
of  the  endorsement  by  Mears,  and  the  assign- 
ment by  Cox.  The  plaintiff,  said  the  Chief 
Justice,  is  certainly  entitled  to  the  money  in 
conscience,  and  therefore,  I  think,  entitled  at 
law. 

The  maker,  who  has  not  paid,  can  set  up  no  hon- 
est defence  against  the  endorsee, 
Let  us  see  what  defence  the  defendant  can 
set  up  against  an  endorsee.  It  is  true,  says 
he,  that  I  gave  the  note  to  A  B,  for 
ten  pounds  due  to  him;  that  I  *prom-  *205 
ised  to  pay  the  money  to  him,  or  to 
any  person,  who  would  procure  his  order  en- 
dorsed. It  is  true,  that  I  have  never  paid 
the  money;  and  the  plaintiff  has,  by  paying 
my  debt,  from  a  reliance  on  my  written  word, 
procured  an  order  endorsed  from  A  B — that 
according  to  the  expression  in  the  note,  the 
plaintiff  might  have  expected  me  to  pay  him 
the  money;  but  the  law  does  not  allow  the 
endorsee  to  recover  in  his  own  name.  This 
is  certainly  the  fairest  defence,  which  can  be 
made  upon  the  statement,  and  is  a  gross  eva- 
sion, founded  in  injustice. 

Notes  payable  to  order,  assignable  on  legal  and 
equitable  principles. 

It  appears,  therefore,  that  notes  payable  to 
order,  are,  on  every  just,  legal,  and  equitable 
principle,  assignable,  by  endorsement;  and 
that  an  endorsee  may  rightfully  main- 
tain an  *action  in  his  own  name,  *206 
against  the  maker. 

As  this  may  be  considered  in  this  State, 
res  Integra,^  we  are  not  obliged,  on  this  sub- 


tA  new  matter,  or  unaffected  by  precedents. 
N.  cnip. 


ON  THE  NEGOTIABILITY  OF  NOTES. 


206 


ject,  to  follow  the  reasons  and  policy  of  the 

English  law.   We  are  at  liberty  to  make  such 

decisions  as  shall,  in  a  general  view,   be 

agreeable  to  justice,  and  the  nature  of  the 

transaction. 

How  far  the  endorsee  is  holden  to  warrant. 

To  consider  the  endorser  of  a  note,  who 
has  received  the  money  of  his  endorsee,  as 
warranting  the  ability  and  punctuality  of  the 
maker,  the  same  as  on  a  bill  of  exchange,  in 
respect  to  the  drawee,  is  agreeable  to  justice. 

Endorsee  must  use  due  diligence,  otherwise  it  is 

at  his  own  risk. 

It  is  equally  agreeable  to  justice,  that  the 
endorsee  should  use  due  diligence  to  obtain 
the  money  of  the  maker,  who  is  to  be  consid- 
ered as  an  accepting  drawee;  and  that 
*207  if  he  be  guilty  of  any  unreasonable 
neglect,  either  in  demanding  the  money 
of  the  maker,  or  in  giving  notice  of  non- 
payment to  the  endorser,  he  should  be  holden 
to  take  the  risk  upon  himself,  and  to  dis- 
charge the  endorser  of  his  warranty. 

For  this  opinion  there  are  two  good  rea- 
sons. 1st.  From  the  silence  of  the  endorsee, 
the  endorser  may  well  conclude  that  the 
money  has  been  received,  and  make  his  ar- 
rangements accordingly.  2d.  During  the  time 
of  delay,  the  endorsee,  possessed  of  the  note, 
prevents  the  endorser  to  take  any  measure  to 
secure  or  recover  the  money  of  the  maker. 

Subsequent  endorsees  within  the  same  reason. 

These  reasons  will  hold  equally  between  any 
subsequent  endorsee,  and  all  the  endorsers; 
against  either  of  whom,  he  may  have  his  rem- 
edy, on  failure  of  the  maker  to  pay. 
*208        *There  are  two  cases  worthy  of  con- 
sideration.    One  is,  between  the  en- 
dorser and  endorsee;  the  other,  between  the 
endorsee  and  the  maker. 

Case  between  endorser  and  endorsee. 

The  first,  between  the  endorser  and  en- 
dorsee, is  where  the  immediate  endorser  is 
discharged  of  any  warranty,  either  by  agree- 
ment, at  the  time  of  endorsement,  or  through 
the  neglect  of  the  endorsee. 

Neglect  of  the  first  endorsee,  runs  against  every 

subsequent  endorsee. 

If  thro'  the  neglect  of  the  endorsee,  the 
endorser  be  discharged,  and  the  note  be  after- 
wards endorsed  to  a  third  person,  the  liability 
of  the  first  endorser  is  not  revived,  though 
the  last  endorsee  had  no  knowledge  of  the 
neglect  of  the  intermediate  endorser.  "Were 
it  otherwise  holden,  it  would  be  an  easy  mat- 
ter, by  subsequent  endorsements,  perpetually 
to  charge  the  first  endorser,  which  would  be 
very  unjust. 

*209       *!/  a  note  be  endorsed  generally,  "value 

received,  "no  private  agreement  should 

avail  against  a  milntetiuent  endorsee. 

An  agreement  between  the  endorser  and 

endorsee,  has  an  appearance  of  more  difficulty. 

If  a  note  be  endorsed,  "Value  received,  pay 

the  contents  to  C  D,  or  order,"  it  includes 

every  subsequent  endorsement,  ad  injlnitum. 

The  last  endorsee  has  the  same,  remedy  against 

the  first,  and  every  intermediate  endorser. 

N.  CHIP. 


No  private  agreement  ought  to  be  allowed  to 
contradict,  what  is  so  held  out  in  the  endorse- 
ment. The  reason  is  plain.  It  would  be  to 
allow  the  endorser  to  hold  out  a  deception. 
The  endorser,  between  him  and  his  imme- 
diate endorsee,  might  make  every  defence  al- 
lowed to  a  note  of  hand;  and  would,  as  I 
conceive,  be  admitted  to  proof,  under  the 
same  limitations. 

If  the  word  "order, "  be  omitted,  it  is  a  restricted 

endorsement. 

Where  the  word  order  is  omitted,  notwith- 
standing some  opinions  to  the  con- 
*trary,  it  is,  on  the  face  of  it,  a  lim-    *210 
ited  contract,  between  the  endorser 
and  his  immediate  endorsee. 

It  implies  no  warranty  to  a  subsequent  endorsee. 
A  subsequent  endorsee  must  take  the  note 
on  the  credit  of  his  immediate  endorser.  The 
contract,  as  to  the  warranty,  is  between  them 
only.  Setting  aside  the  custom,  which  has 
obtained  in  England,  there  can  be  no  decep- 
tion. Nothing  on  the  face  of  the  contract, 
warrants  a  supposition,  that  the  endorser 
will  warrant  to  any  future  endorsee.  There 
is  nothing  to  support  even  the  fiction  of  a 
privity  for  this  purpose.  To  carry  the  sense 
of  the  word  order,  in  the  note,  which,  in  re- 
ference to  a  bill  of  exchange,  is  the  expression 
of  the  acceptor,  into  the  endorsement,  which 
is  the  act  of  the  drawer,  so  as  to  bind  him,  is 
a  harsh  and  unnatural  construction. 
If,  for  the  ""convenience  of  a  subse-  *211 
quent  endorsee,  to  enable  him  to  re- 
cover of  the  maker,  the  word  order,  on  the 
face  of  the  note,  be  implied  in  the  endorse- 
ment, it  will,  perhaps,  be  an  injury  to  no 
one;  but  to  imply  it  for  the  sake  of  a  remedy 
against  the  first  endorser,  is  to  introduce,  by 
implication,  that,  which  was  carefully  avoided 
in  the  expression. 

Notes  endorsed  blank.— May  not  be  used  by  the 

endorsee,  contrary  to  agreement. 

It  is  frequent  for  notes  to  be  endorsed 
blank,  and  to  pass  from  hand  to  hand,  either 
with  or  without  any  subsequent  endorse- 
ment; and  for  the  blank  to  be  filled  up  on 
occasion. — Here  a  question  has  been  made, 
whether  the  person,  who  receives  a  note  thus 
endorsed  blank,  may  not  fill  up  the  blank 
with  any  kind  of  endorsement,  as  he  shall 
choose. 
*  Proof  may  be  admitted  of  the  intention.  *212 

Between  the  endorser  and  his  imme- 
diate endorsee,  it  is  clear,  no  use  can  justly 
and  equitably  be  made  of  the  endorsement, 
substantially  different  from  the  intention  of 
the  parties,  at  the  time  of  endorsing.  Proof, 
therefore,  ought  to  be  admitted  between  these 
parties,  to  shew  what  was  that  intention. 

Endorsement  filled  contrary  to  agreement,  and 

rxissed  without  notice. 

If  an  endorsee,  who  had  received  a  note 
thus  endorsed  blank,  fora  particular  purpose, 
should  afterwards  fill  up  the  blank  with  a 
general  endorsement,  and  without  giving 
notice  of  the  agreement  between  him  and  his 
endorser,  endorse  the  same  note  to  a  third 

39 


212 


N.  CHIPMAN'S  REPORTS. 


person,  it  might,  at  first  view,  seem  to  admit 
a  different  consideration.     It  may  be  said, 
that  by  neglecting  to  fill  up  the  blank  accord- 
ing to  the  agreement,  the  first  endorser 
*213    had,  at  least,  put  it  in  *the  power  of 
his  endorsee  to  exhibit  him  as  a  war- 
rantor; which,  if  allowed  to  be  controverted, 
might  prove  a  deception  upon  third  persons. 

The  subsequent  endorsee,  ought  to  trust  to  the 

honesty  of  his  endorser,  for  the  right  he  has 

against  a  prior  endorser. 

Notwithstanding  this  consideration,  I  can- 
not but  think  it  more  agreeable  to  justice  and 
equity,  that  the  subsequent  endorsee  should, 
in  this  point,  trust  to  the  honesty  and  credit 
of  his  endorser,  with  whom  alone  he  is  con- 
cerned in  contract.  Were  this  established 
tor  law,  there  would  be  much  less  room  for 
deception,  than  upon  an  admission  of  the 
contrary  doctrine. 

It  is  true,  the  credit  of  every  endorser  may 
add  to  the  credit  of  the  note.  But  this,  on  a 
contract  for  a  transfer,  is  an  advantage  to 
the  seller,  not  to  the  buyer.  I  see  no  good 
reason,  why  a  construction  should  be 
*214  *forced,  to  give  him  an  advantage  to 
which  he  is  not,  in  equity,  entitled, 
which  he  cannot  take,  with  a  good  conscience, 
and  for  the  sake  of  the  buyer,  who  is  a  mere 
volunteer,  to  allow  the  seller  to  bind  a  third 
person,  contrary  to  agreement. 

It  is  here  considered  independent  of  custom. — A 

custom  may  alter  the  reason. 

I  here  go  upon  a  supposition,  that  no  cus- 
tom has,  in  this  case,  been  established.  The 
prevalence  of  a  general  custom,  frequently 
alters  the  reason  of  cases.  It  is,  while  re- 
maining in  force,  equal  to  a  general  agree- 
ment. 

If  a  note  endorsed  blank  pass  thro'  several  hands, 
to  what  purpose  the  endorsement  shall  serve. 
"Where  the  note  passes  thro'  several  hands, 
the  name  of  the  original  payee  remaining  en- 
dorsed, in  blank,  may  well  justify  a  sale  of 
the  note,  by  authorising  the  holder  to  receive 
the  money;  but  as  to  any  other  purposes,  it 
ought  to  be  taken  subject  to  the  agree- 
*215    ment,   made  *on    the   first  endorse- 
ment. 

It  ought,  as  to  the  first  endorsee,  to  be  subject  to 

the  agreement  made  at  the  time. 

If  A,  for  instance,  sell  a  note  to  B,  at  the 
risk  of  B,  and  endorse  it  blank;  and  B  sell  it 
to  0,  without  giving  notice  of  the  agreement 
with  A,  or  should  he  falsely  affirm,  that  A 
was  holden  to  warrant,  the  deceit  of  B  ought 
not  to  injure  A.  C  ought  to  look  to  B,  with 
whom  he  dealt,  and  to  whom  alone  he  had  a 
right  to  give  credit. 

A.  name  endorsed  without  a  custom,  implies  no 
warranty. 

If  a  custom  have  not  prevailed  to  suggest 
the  idea,  no  one  would  suspect,  that  a  name 
only,  written  on  the  back  of  a  note,  had  any 
thing  to  do  with  a  warranty. 

A.  case  of  forgery. 

To  consider  this  matter  in  another  point  of 
light — A  employs  B  to  transact  a  certain 

40 


piece  of  business,  and  signs  his  name  on  a 
blank  paper,  for  the  purpose  of  filling  up  a 
receipt  in  the  course  of  that  business. 
Instead  of  a  receipt,  B  fills  up  a  *note    *216 
against  A,  payable  to  himself,  or  or- 
der.   None  will  hesitate  to  pronounce  this  to 
be  a  complete  forgery;  and  that  the  note, 
whether  in  the  hands  of  B,or  of  his  endorsee, 
would,  on  proof,  be  utterly  void  against  A. 

To  sell  an  endorsement  contrary  to  agreement^ 
equally  fraudulent. 

There  can,  in  point  of  substantial  justice, 
be  no  difference  between  the  case  put,  and 
that  of  a  blank  endorsement,  filled  contrary 
to  an  express  agreement.  The  latter  is,  in 
foro  conscientice,  equally  criminal  with  the 
former,  and  ought  to  be  deemed  equally  void. 

Case  between  the  endorsee  and  the  maker. 

The  second  case,  as  mentioned  above,  be- 
tween the  maker  and  the  endorsee,  is,  where 
the  payee  himself  could  not  maintain  an  ac- 
tion against  the  maker,  either  because  the 
maker  had  made  full  payment  to  the  payee, 
or  obtained  a  discharge  from  him,  be- 
fore the  endorse*ment,  or  rather,  be-  *217 
fore  notice  of  the  endorsement ;  or  be- 
cause the  note  was  originally  obtained  by 
fraud,  imposition,  or  on  an  illegal  considera- 
tion ;  where  the  maker  has  paid  before  en- 
dorsement, and  neglected  to  take  up  his  note; 
the  question  occurs,  shall  the  maker  of  the 
note,  because  he  has  neglected  to  take  it  up, 
or  to  have  it  cancelled,  although  he  has  hon- 
estly paid,  be  still  holden  to  the  order  of  the 
payee?  In  favor  of  the  endorsee,  it  is  said, 
that  the  promise  to  pay  to  A,  or  order,  is  a 
general  promise  to  pay  to  any  person,  who 
shall  procure  such  order;  and  that,  to  suffer 
any  private  transaction  between  the  maker 
and  original  payee,  to  deprive  a  third  person, 
who  had  dealt,  bonafide,  of  the  benefit  of  his 
order  against  the  maker,  is  to  suffer 
one  man  *to  be  imposed  upon  through  *218 
the  neglect  of  another. 

The  promise  to  pay  A,  or  order,  is  to  one  or  the 
other,  not  to  both. 

This  argument,  however,  will  have  no 
weight,  without  a  general  custom  to  support 
it.  The  promise  contained  in  the  note  im- 
ports no  such  thing.  "1  promise  to  pay  to 
A,  or  his  order,"  that  is,  to  one  or  the  other, 
who  first  demands;  not  to  both. 

If  the  maker  have  paid  to  A,  the  right  is  extin- 
guished; no  right  remains  to  be  assigned. 

If  the  maker  have  fulfilled  his  promise  to 
A,  the  contract  is  clearly  discharged.  A  has 
not  a  scintilla  juris*  to  demand  any  thing 
farther  on  the  contract.  He  has,  in  fact,  no 
demand  to  assign.  Shall  his  endorsement, 
which  is  in  itself  a  fraud,  convey,  or  revive 
a  right  against  the  maker,  who  has  honestly 
paid,  according  to  agreement?  This  would 
be  to  enable  A,  by  the  intervention  of  an  en- 
dorsee, to  effectuate  a  fraud,  which  he 
could  not  have  done  in  his  own  *name.  *219 


*  A  spark,  or  glimpse  of  right. 
N.  CHIP. 


ON  THE  NEGOTIABILITY  OF  NOTES. 


219 


Endorsee  is  a  volunteer  purchaser.— Ought  to  se- 
cure himself  against  his  endorsee. 
The  endorsee,  in  this  case,  is  a  volunteer. 
He  is  under  no  necessity  to  purchase  this 
particular  note.  He  deals  with  A  alone. 
He  is  at  full  liberty,  if  he  distrust  the  hon- 
esty of  A's  representation,  to  take  security, 
or  refuse  the  contract.  Let  him  trust  for 
security  where  he  deals,  and  take  his  remedy 
against  the  man  who  deceived  him.  CAVEAT 
EMPTOR,  beware  purchaser,  may,  in  this  case, 
with  great  propriety,  be  applied  to  the  en- 
dorsee. If  he  have  neglected  to  secure  him- 
self against  A,  he  ought  to  suffer  the  loss. 

Proof  of  notice  should  come  on  the  part  of  en- 
dorsee.— Maker  not  to  be  bound,  unless  notified. 

It  is  but  reasonable,  that  the  maker  should 
be  bound  only  by  notice  of  the  endorsement; 
and,  that  in  all  such  questions,  to  charge  the 

maker  on  the  alternative  of  his  prom- 
*220  ise,  to  pay  *to  the  order,  the  proof 

should  come  on  the  part  of  the  endor- 
see. It  is  a  matter  in  his  own  knowledge; 
and  it  is  in  his  own  power  to  fix  the  maker, 
by  notice  of  the  endorsement.  The  maker 
has  good  reason  to  suppose  his  contract  to 
remain  in  statu  quo,  until  he  be  informed 
of  a  change  of  parties ;  and  to  make  his  pay- 
ments accordingly. 

Where  the  note  was  obtained  by  fraud,  endorsee 
ought  not  to  recover. 

The  same  reasons  hold  with  equal,  if  not 
greater  force,  where,  between  the  maker  and 
original  payee,  the  note  was  obtained  by  fraud, 
imposition,  or  on  an  illegal  consideration. 

Hard  constructions  in  the  English  law,  have  not 
always  prevailed  against  the  maker. 
In  the  English  laws,  there  have  been  many 
hard  constructions  against  the  makers  of 
notes,  in  favor  of  endorsees;  but  such  con- 
structions have  not  always  prevailed. 

"221      *By  9  Ann.  notes  given  for  money  lent  to 

game  with,  void. 

By  the  9th  Ann.  c.  14.  s.  1.  it  is  enacted, 
that,  "all  notes,  where  the  whole,  or  any  part 
"of  the  consideration  is  money  knowingly 
"lent  for  gaining,  shall  be  void,  to  all  intents 
"and  purposes  whatever."  2  Stran.  1155. 
Bowyer  vs.  Bampton.  In  an  action  brought 
by  the  plaintiff,  as  endorsee  of  several  prom- 
issory notes,  it  appeared,  that  the  notes  were 
given  to  one  Church,  for  money  by  hrm 
knowingly  advanced  to  the  defendant,  to 
game  with,  at  dice;  that  Church  endorsed 
them  to  the  plaintiff,  for  a  full  and  valuable 
consideration;  and  that  the  plaintiff  was  not 
privy  to,  or  had  any  notice,  that  any  part  of 
the  money,  for  which  the  notes  were  given, 
was  lent  for  the  purposes  of  gaining. 

A  note  (liven  for  money  lent  tr>  game  ivith,  held 
voitl  in  the  hands  of  a  bonajldc  and  innocent 
endorsee. 

Upon  this  case,  a  question  arose, 
*222  whether  the  plaintiff,  a  *bona  Jide, 
and  innocent  endorsee,  could  maintain 
an  action  on  these  notes,  against  the  defend- 
ant? After  two  arguments,  the  Court  were 
of  opinion,  that  he  could  not:  "For,"  said 


they,  "it  will  be  making  it  of  some  use  to  the 
lender,  if  he  can  pay  his  debts  with  it;  and 
it  will  be  a  means  to  evade  the  statute,  being 
so  very  difficult  to  prove  notice  upon  an  en- 
dorser. And  though  it  will  be  some  incon- 
venience to  an  innocent  man,  yet  that  will 
not  be  a  balance  to  those  on  the  other  side; 
and  the  plaintiff  is  not  without  remedy;  for 
he  may  sue  Church  on  the  endorsement.  It 
is  but  the  common  hazard  of  taking  notes  of 
infants,  and  femes  covert." 

Less  favorable  than  the  case  of  previous  pay- 
ment. 

These  reasons  are  much  more  con- 
clusive in  favor  of  the  maker  *of  a    *223 
promissory  note,   who  has  paid  the 
money  before  endorsement,  or  rather,  before 
notice;  or  where  the  note  was  obtained  by 
fraud,  imposition,  or  upon  a  consideration, 
which  was  illegal,  as  being  malutn  in  se, 

Here  the  maker  is  innocent.  He  has  been 
punctual;  he  has  been  honest.  In  that  case, 
the  defendant  was  not  innocent — He  had  re- 
ceived the  full  value  of  Church,  and  screened 
himself  under  a  statute,  which  had  more  re- 
gard to  public  policy,  than  private  honesty. 

The  law  of  nature  against  fraud,  ought  to  have 
equal  force  with  an  act  of  legislation. 
That  no  one  should  benefit  himself,  or  le- 
gally charge  an  innocent  man,  by  a  fraudu- 
lent act,  is  a  law  of  nature,  of  reason,  and 
common  honesty,  which  ought  not  to  be  less 
regarded  in  the  administration  of  justice, 
than  acts  of  legislation. 

*After  endorsement,  and  notice  to  *224 
the  maker,  he  cannot  honestly,  or 
safely,  make  further  payment  to  the  original 
payee.  He  is  then  holden  to  the  second  part 
of  the  alternative  in  his  promise,  to  pay  to 
the  order. 

Notes  payable  to  bearer,  within  the  same  reason 
with  notes  payable  to  order. 

It  will  readily  be  perceived,  that  the  same 
arguments  will  apply  to  the  case  of  notes 
payable  to  bearer.  They  are  equally  negotia- 
ble.according  to  the  true  intent  of  thecontract. 
More  subject  to  frauds. 

But  as,  upon  a  literal  construction,  no  en- 
dorsement, nothing  but  a  delivery  from  hand 
to  hand,  is  necessary  to  pass  the  right,  they 
might,  in  practice,  open  a  door  to  many 
frauds  and  secret  impositions. 

May  be  remedied  by  Insisting  that  they  be  en- 
dorsed, to  give  a  right  of  demand. 
A  remedy  might,  however,  be  applied  con- 
sistently with  the  nature  of  the  contract,  and 
the  principles  of  justice.     The  holder 
of  such  *note,  that  he  may  be  entitled     *225 
to  demand  of  the  maker,  must  be  a 
bona  Jide  bearer.     Let  it,  then,  be  insisted, 
that  the  bearer,  in  order  to  establish  his  right 
of  demand,  shall  prove  himself  a  b< ma  Jide 
bearer,  by  producing  an  actual  endorsement 
of  the  note.     This  would  be  no  more  than 
just,  and  would,  perhaps,  obviate  every  rea- 
sonable objection  arising  from  the  danger  of 
secret  fraud. 


N.  CHIP. 


41 


END   OK   THE   DISSERTATIONS. 


APPEN  DIX. 


*227  *Rules  of  the  Supreme  Court 
of  the  State  of  Vermont. 

ADDISON  COUNTY. 

SUPREME  COURT,  August  Term,  1790. 

It  is  ordered,  That  after  the  present  cir- 
cuit, all  actions  cognizable  before  this  court, 
shall  be  entered  on  the  first  day  of  the  sitting 
of  the  court,  and  not  after. 

By  order  of  the  Court, 

N.  BRUSH,  Clerk. 

CHITTENDEN  COUNTY. 

SUPREME  COURT,  August  Term,  1791. 

It  is  ordered  by  the  court,  That  all  causes 
brought  to  this  court,  by  appeal  from  any 
county  court,  shall  be  heard,  tried  and  deter- 
mined upon  the  pleadings  in  the  court  below; 

unless  one  of  the  parties  in  the  court 
*228  below,  *shall  think  he  has  missed  his 

plea,  replication,  rejoinder,  &c.  In 
which  case  the  party  so  missing  his  plea,  re- 
plication, rejoinder,  &c.  shall  have  liberty  to 
alter  or  amend  the  same,  or  plead  de  novo, 
as  the  case  may  be,  on  giving  to  the  adverse 
party  notice  in  writing,  of  such  alteration, 
amendment  or  new  plea,  &c.  at  the  time  of 
granting  such  appeal,  or  not  less  than  thirty 
days  before  the  court  to  which  such  appeal 
shall  be  entered. 

Provided  nevertheless,  On  the  first  or  sec- 
ond day  of  the  court  sitting,  that  upon  mo- 
tion and  sufficient  cause,  the  party  who  shall 
have  missed  his  plea,  replication,  &c.  and 
not  given  notice  as  aforesaid,  shall  have  lib- 
erty to  alter  or  amend,  or  plead  de  novo,  by 
paying  down  to  the  adverse  party,  such  rea- 
sonable cost  as  they  shall  award  for  such 
neglect. 

By  order  of  the  court, 

N.  BRUSH,  Clerk. 


*229 


*OKANGE  COUNTY. 


SUPREME  COURT,  September  Term,  1791. 

It  is  ordered  by  the  court,  That  on  the  en- 
try of  every  writ  of  error,  the  plaintiff  in 
error  shall  deliver  to  the  court  a  lair  copy  of 
the  writ  of  error,  with  the  assignment  of  the 
errors.  And  whenever  an  issue  of  law  is 
joined  on  special  pleadings  in  any  cause,  the 
party  demurring  shall  in  like  manner  furnish 
the  court  with  a  fair  copy  of  all  the  plead- 
ings in  the  cause  on  his  filing  his  demurrer. 
By  order  of  the  court, 

N.  BRUSH,  Clerk. 


*ORANGE  COUNTY. 


*230 


IN  CHANCERY,  September  Term,  1791. 

It  is  ordered,  That  the  plaintiff  or  plain- 
tiffs in  every  suit  in  chancery,  shall  deliver 
to  the  court  a  fair  copy  of  his,  her,  or  their 
bill,  at  the  opening  of  the  court  on  the  sec- 
ond day  of  the  term  in  which  the  bill  is  filed 
— and  the  defendant  or  defendants,  in  like 
manner,  shall  give  to  the  court  a  fair  copy 
of  his  or  their  answer,  plea,  or  demurrer,  at 
the  time  of  filing  the  same  with  the  clerk. 
By  order  of  the  court, 

N.  BRUSH,  Clerk. 


*Forms  of  Special  Pleadings.  *231 
Eecord  of  a  cause  before  the  County  Court. 

ASSUMPSIT  ON  NOTE,   WITH  SEVERAL  PLEAS 
OF  OFFSET. 

James  Jinks,  vs.  John  Simpson. 

RUTLAND  COUNTY. 

Be  it  remembered,  That  at  a  county  court, 
holden  at  Rutland,  in  and  for  the  county  of 
Rutland,  on  the  —  —  day  of  November,  in 
the  year  of  our  Lord  1791,  John  Simpson,  of 
Rutland,  aforesaid,  was  summoned  to  an- 
swer to  James  Jinks,  of  Pittsford,  in  the 
county  aforesaid,  in  a  plea  of  the  case; 
whereupon  the  said  James  Jinks,  who  comes 
by  H,  his  attorney,  declares  and  says, 
Declaration. 

That  on  the  first  day  of  May,  in  the  year 
of  our  Lord  1790,  at  Rutland  aforesaid,  the 
said  John  Simpson  did  make  and  deliver  to 
the  said  James,  his  certain  note  in  writing, 
commonly  called  a  promissory  note,  signed 
with  the  proper  hand  of  him  the  said 
*John,  and  bearing  date  the  day  and  *232 
year  last  aforesaid;  in  and  by  which 
said  note,  the  said  John  promised  the  said 
James  to  pay  to  him,  for  value  received,  the 
sum  of  fifty  pounds,  lawful  money,  on  the 
first  day  of  May,  which  should  be  in  the  year 
of  our  Lord  1791,  with  the  lawful  interest 
for  the  same — by  the  reason  whereof,  the 
said  John  became  liable  to  pay  to  the  said 
James,  the  aforesaid  sum  of  fifty  pounds, 
according  to  the  tenor  and  effect  of  said  note; 
and  being  so  liable,  the  said  .lolm  afterwards, 
to  wit,  on  the  same  first  day  of  May,  in  the 
year  of  our  Lord  1790,  at  Rutland  aforesaid, 
did,  in  consideration  thereof,  assume  upon 
himself,  and  to  the  said  James  faithfully 
promise  to  pay  the  aforesaid  sum  of  fitly 


N.  CHIP. 


232 


N.  CHIPMAN'S  REPORTS. 


pounds  according  to  the  tenor  and  effect  of 
said  note;  nevertheless  the  said  John  not  re- 
garding liis  promise  and  assumption  afore- 
said, hath  never  performed  the  same,  al- 
though often  thereto  requested,  to  the  dam- 
age of  the  said  John,  as  he  says,  the 
*233  sum  of  *£.70  lawful  money— to  re- 
cover which,  with  his  costs,  he  brings 
this  suit. 
Defendant's  appearance. — Continuance. 

At  which  day  the  said  John  Simpson  comes 
into  court  here,  by  C  D,  his  attorney,  and 
prays  a  continuance  in  this  behalf,  until  the 
next  county  court  to  be  holden  in  Rutland 
aforesaid,  in  and  for  the  county  of  Rutland; 
and  it  is  granted;  and  the  same  day  is  given 
as  well  to  the  said  James,  as  to  the  said  John. 

PL  non.  ass. 

At  which  day  come  the  said  John  and  the 
said  James,  by  their  attornies  aforesaid;  and 
the  said  John,  by  his  said  attorney,  pleads 
and  says,  that  he  did  not  assume  and  promise 
in  manner  and  form  as  the  said  James,  in 
his  declaration  hath  alledged,  and  thereof 
puts  himself  on  the  country  for  trial — and 
the  said  James  doth  the  same. 

Plea  of  offset. 

And  for  farther  plea,  the  said  John  says, 
that  the  said  James  is  indebted  to  him  the 
said  John,  in  divers  large  sums  of  money; 

1st  Count,  note. 
*234        For  this,  *to  wit,  that  at  Rutland 

aforesaid,  on  the  first  day  of  October, 
in  the  year  of  our  Lord  1790,  the  said  James 
made  and  delivered  to  the  plaintiff  his  certain 
note  in  writing,  commonly  called  a  promis- 
sory note,  signed  with  the  hand  of  the  said 
James,  and  bearing  date  the  day  and  year 
last  aforesaid;  in  and  by  which  said  note, 
the  said  James  promised  the  said  John  to 
pay  to  him,  for  value  received,  the  sum  of 
£.10  lawful  money,  on  the  first  day  of  Jan- 
uary then  next,  and  before  the  commence- 
ment of  the  said  James's  present  action; 
whereupon  the  said  James  became  liable  in 
law  to  pay  to  the  said  John  the  aforesaid 
sum  of  £.10,  according  to  the  tenor  of  said 
note;  and  being  so  liable,  the  said  James  aft- 
erwards, to  wit,  at  Rutland  aforesaid,  on  the 
same  first  day  of  October,  in  the  year  of  our 
Lord  1790,  did,  in  consideration  thereof,  as- 
sume upon  himself,  and  to  the  said  John 

faithfully  promise  to  pay  to  him,  the 
*235  aforesaid  sum  of  101.  according  to 

the  tenor  of  said  note. 

2d  Ind.  ass. 

And  also  for  this,  to  wit,  that  at  Rutland 
aforesaid,  on  the  first  day  of  April,  in  the 
year  of  our  Lord  1791,  and  before  the  com- 
mencement of  the  present  action  of  the  said 
James,  the  said  James  was  indebted  to  the 
said  John,  in  the  sum  of  301.  lawful  money, 
for  so  much  money  by  the  said  John  ad- 
vanced, laid  out,  and  expended  for  the  use 
of  the  said  James,  at  his  the  said  James's  spe- 
cial instance  and  request;  whereupon  the 

44 


said  James  became  liable  in  law  to  pay  to  the 
said  John,  the  aforesaid  sum  of  301.  and  be- 
ing so  liable,  did  afterwards,  to  wit,  at  Rut- 
land aforesaid,  on  the  day  and  year  last  afore- 
said, in  consideration  thereof,  assume  upon 
himself,  and  to  the  said  John  faithfully 
promise  to  pay  to  him  the  aforesaid  sum  of 
301,  when  he  should  be  thereunto  requested. 

3d  Endorsed  note. 

And  also  for  this,  to  wit,  That  whereas  on 
the  4th  day  of  May,  in  the  year  of  our  Lord 
1791,  the  said  James  made  and  deliv- 
ered to  one  *Titus  Thompson,  his  cer-  *236 
tain  note  in  writing,  commonly  called 
a  promissory  note,  signed  with  the  hand  of 
him  the  said  James,  and  bearing  date  the  day 
and  year  last  aforesaid ;  in  and  by  which  said 
note,  the  said  James  promised  the  said  Titus 
to  pay  to  him,  or  to  his  order,  the  sum  of 
201.  lawful  money,  within  one  month  after 
the  date  of  said  note,  with  lawful  interest 
for  the  same — And  afterwards,  to  wit,  on  the 
first  day  of  July,  in  the  year  of  our  Lord 
1791,  and  before  the  commencement  of  the 
present  action  of  the  said  James,  the  said  sum 
of  201.  being  then  and  still  unpaid,  the  said 
Titus  did,  by  his  endorsement,  signed  with 
his  own  proper  hand,  appoint  and  order  the 
said  James  to  pay  to  the  said  John  the  said 
sum  of  201.  according  to  the  tenor  and  effect 
of  said  note;  of  all  which  the  said  James,  to 
wit,  at  Rutland  aforesaid,  on  the  day  and 
year  last  aforesaid,  had  notice;  whereupon 
the  said  James  became  liable  in  law  to  pay 
to  the  said  John  the  aforesaid  sum  of 
201.  according  *to  the  tenor  and  effect  *237 
of  said  note;  and  being  so  liable,  the 
said  James  afterwards,  to  wit,  at  Rutland 
aforesaid,  on  the  day  and  year  last  aforesaid, 
did,  in  consideration  thereof,  assume  upon 
himself,  and  to  the  said  John  faithfully 
promise  to  pay  to  him  the  aforesaid  sum  of 
201.  according  to  the  tenor  and  effect  of  said 
note — And  the  said  John  says,  the  said  sum 
of  201.  last  aforementioned,  was  due  and 
payable  from  the  said  James,  before  the  com- 
mencement of  the  present  action  of  the  said 
James.  Nevertheless  the  said  James,  his 
promises  and  assumption  aforesaid  not  re- 
garding, hath  never  performed  the  same,  or 
either  of  them — to  the  damage  of  the  said 
John  the  sum  of  601.  lawful  money; — the 
said  John  therefore  prays  that  the  same  may 
be  offset  against  the  demand  of  the  said 
James,  and  that  he  the  said  John  may  recover 
the  balance  which  shall  be  found  due  to  him 
from  the  said  James,  according  to  the  statute 
in  such  case  made  and  provided. 

*Pltff1s  plea  as  to  the  1st  and  2d  counts.          *238 

And  the  said  James,  by  H,  his  at- 
torney as  aforesaid,  pleads  and  says,  that  as 
to  the  1st  and  2d  counts  in  the  plea  of  offset 
of  the  said  John,  he  did  not  assume  and 
promise  in  manner  and  form  as  the  said  John 
hath  therein  alledged,  and  hereof  he  puts 
himself  on  the  country — And  the  said  John 
doth  likewise. 

N.  CHIP. 


APPENDIX. 


238 


Plea  to  the  3d  count. 

And  as  to  the  3d  count  in  the  said  plea  of 
offset  of  the  said  John,  he  says,  that  the  said 
John  ought  not  to  recover  thereof  against 
him  the  said  James,  because,  he  says,  that 
after  the  making  of  the  said  promissory  note, 
in  the  said  3d  count  mentioned,  and  before 
any  endorsement  thereof  by  the  said  Titus 
Thompson,  to  wit,  on  the  first  day  of  June, 
in  the  year  of  our  Lord  1791,  he  the  said 
Titus,  at  Rutland  aforesaid,  by  his  certain 
deed,  then  and  there  made  by  the  said  Titus, 
to  the  said  James,  (which  said  deed  of  the 
said  Titus,  signed  with  his  hand,  and  sealed 
with  his  seal,  the  date  whereof  is  the 
*239  same  day  *and  year  last  aforesaid,  the 
said  John  brings  into  court  here)  did 
remise,  release,  and  forever  quit  claim  to  the 
said  James,  by  the  name  of  James  Jinks,  of 
Pittsford,  in  the  county  of  Rutland,  his  heirs, 
executors,  and  administrators,  all  and  all 
manner  of  action  and  actions,  cause  and 
causes  of  action,  suits,  notes,  bills,  bonds, 
writings  obligatory,  debts,  duties,  accounts, 
sum  or  sums  of  money,  judgments,  execu- 
tions, controversies,  trespasses,  damages,  and 
demands,  of  what  name  or  nature  soever, 
which  he  the  said  Titus  ever  had,  or  might 
hereafter  claim,  challenge,  or  demand,  by 
reason  of  any  matter,  cause,  or  thing  what- 
ever, from  the  beginning  of  the  world,  to  the 
day  of  the  date  of  said  deed,  as  by  the  said 
deed,  relation  being  thereunto  had,  may  more 
fully  appear.  And  the  said  James  further 
says,  that  at  the  time  of  making  the  said 
deed  of  the  said  Titus,  as  aforesaid,  the  said 
promissory  note,  mentioned  in  the  said  3d 
count  of  the  plea  of  the  said  John  above 
*240  plead*ed,  was  in  the  custody  and  pos- 
session of  the  said  Titus,  not  endorsed 
by  him,  and  this  the  said  James  is  ready  to 
verify;  wherefore  he  prays  judgment,  wheth- 
er the  said  John  ought  to  recover  against  him 
the  said  James,  on  the  count  last  aforesaid. 

Further  plea,  1st  count,  debt  on  bond. 

And  for  further  plea  he  saith,  that  the  said 
John  is  further  indebted  to  him  the  said 
James,  in  divers  large  sums  of  money;  for 
this,  to  wit,  that  on  the  first  day  of  Septem- 
ber, in  the  year  of  our  Lord  1791,  the  said 
John  Simpson,  by  his  certain  writing  obliga- 
tory, signed  by  the  hand,  and  sealed  with  the 
seal  of  the  said  John,  and  ready  to  be  shewn 
to  the  court,  did  acknowledge  himself  to  be 
holden  and  firmly  bound  to  the  said  James, 
in  the  sum  of  401.  lawful  money,  to  be  paid 
to  the  said  James,  by  the  said  John,  when 
he  the  said  John  should  be  afterwards  there- 
unto requested. 

*341       *2d  On  judgment. 

And  also  for  this,  to  wit,  that 
whereas  at  a  county  court  holden  at  Rutland, 
in  and  for  the  county  of  Rutl.ind,  on  the  third 
Tuesday  of  November,  in  the  year  of  our 
Ix>rd  1791,  the  said  .James,  by  thu  considera- 
tion and  judgment  of  said  court,  recovered 

N.  CHIP. 


against  the  said  John,  by  the  name  of  John 
Simpson,  of  Rutland,  in  the  county  of  Rut- 
land, the  sum  of  twenty  pounds  lawful 
money,  for  damages  which  he  had  sustained 
by  reason  of  a  certain  trespass  of  him  the 
said  John,  heretofore  done  to  the  said  James, 
as  well  as  for  his  costs  and  charges,  by  him 
in  that  behalf  expended;  whereof  the  said 
John  has  been  convicted,  as  by  the  record 
and  proceeding  thereof  still  remaining  in  the 
said  court,  more  fully  appears;  which  said 
judgment  still  remains  in  said  court  in  its 
full  force,  strength  and  effect,  never  reversed, 
annulled,  set  aside,  paid,  satisfied,  or  dis- 
charged; and  the  said  James  hath  not  yet 
obtained  any  execution  on  his  said 
judgment;  whereby  an  *action  hath  *242 
accrued  to  the  said  James,  to  have  of 
and  from  the  said  John,  the  aforesaid  sum 
of  201.  Nevertheless  the  said  John  hath 
never  paid  or  satisfied  to  the  said  James  the 
aforesaid  sums,  or  either  of  them.  But  the 
same,  being  601.  in  the  whole,  is  still  due 
and  owing  from  the  said  John  to  the  said 
James;  which  he  prays  may  be  set  off  against 
the  demand  of  the  said  John,  in  his  plea  of 
offset  above  pleaded;  and  that  he  the  said 
James  may  recover  the  balance  thereupon 
due  to  him,  according  to  the  statute  in  such 
case  made  and  provided. 

Deffs  repl. 

And  the  said  John,  by  his  said  attorney, 
farther  pleads  and  says,  that  for  any  thing 
in  the  plea  of  the  said  James,  in  bar  above 
pleaded,  he  the  said  John  ought  to  recover  on 
the  said  3d  count  contained  in  his  plea  in 
offset  above  pleaded,  because  he  says,  that 
the  said  James,  on  the  first  day  of  May,  in 
the  year  of  our  Lord  1791,  did  make  and  de- 
liver to  the  said  Titus  Thompson,  his 
certain  note  in  writing,  *commonly  *243 
called  a  promissory  note,  subscribed 
with  his  hand,  and  bearing  date  the  day  and 
year  last  aforesaid;  in  and  by  which  said 
note,  the  said  John  promised  the  said  Titus 
to  pay  to  him,  or  to  his  order,  the  said  sum 
of  201.  within  one  month  after  the  date  of 
said  note,  with  lawful  interest  for  the  same; 
and  the  said  Titus  did,  afterwards,  to  wit, 
on  the  first  day  of  July,  in  the  year  of  our 
Lord  1791,  appoint  and  order  the  said  James 
to  pay  to  the  said  John,  the  aforesaid  sum  of 
201.  according  to  the  tenor  of  said  note,  of 
which  the  said  James  had  notice,  and  became 
liable,  and  did  assume  and  promise  to  the 
said  John,  the  same  sum  of  201.  according  to 
the  tenor  of  said  note. 

Traverse. 

And  the  said  John,  in  fact,  says,  that  the 
said  Titus  did  not  make  and  execute  the  said 
deed  of  release,  to  the  said  James,  on  the 
said  first  day  of  June,  in  the  year  of  our  Lord 
1791,  or  at  any  other  time  before  the  endorse- 
ment of  the  said  note  to  the  said  John 
— *and  hereof  lie  puts  himself  on  the  *244 
country  for  trial. 

45 


244 


N.  CHIPMAN'S  REPORTS. 


Plea  to  the  1st  count  of  the  plaintiff,  in  offset. 

Oner  of  tiie  bond  &  condition— Payment  at  the 

day  in  bar. 

And  as  to  the  1st  count  contained  in  the 
plea  of  offset  by  the  said  James  above  pleaded, 
the  said  John  pleads  and  prays  oyer  of  the 
said  writing  obligatory,  which  is  read  to  him 
in  the  following  words,  to  wit,  (here  insert 
the  bond) — and  he  also  prays  oyer  of  the  con- 
dition of  the  writing  obligatory,  which  is 
read  to  him  in  the  following  words,  to  wit, 
(here  insert  the  condition)  which  being  read 
and  heard,  he  says,  that  the  said  James  ought 
not  to  recover  thereof  against  him,  because 

he  says,  that  he  the  said  John,  on  the 

day  of in  the  said  condition  above  spec- 
ified, paid  to  the  said  James,  the  sum  of  201. 
lawful  money,  which  he  the  said  John  ought 
to  have  paid  to  the  said  James  upon  that  day, 
according  to  the  form  and  effect  of  the  said 
condition,  to  wit,  at  Rutland  aforesaid, 
*245  and  this  he  is  ready  to  verify;  *  where- 
fore he  prays  judgment  if  the  said 
James  ought  to  recover  thereof  against  the 
said  John. 
To  2d  count,  nil  debet. 

And  as  to  the  2d  count  in  the  said  plea  of 
offset  of  the  said  James,  he  says,  that  he  does 
not  owe  the  said  James  in  manner  and  form 
as  the  said  James  therein  hath  alledged,  and 
hereof  puts  himself  on  the  country  for  trial — 
and  the  said  James  doth  likewise. 
Replication  to  tlie  plaintiff's  plea  in  bar. 

And  the  said  James,  by  his  attorney,  re- 
plies to  the  plea  of  the  said  John  in  bar  above 
pleaded,  and  says,  that  for  any  thing  therein 
alledged,  he  ought  to  recover  thereof  against 
him  the  said  John,  because  he  says,  that  the 
said  John,  on  the  first  day  of  September,  in 
the  year  of  our  Lord  1791,  did,  by  his  certain 
writing  obligatory,  signed  by  his  hand,  and 
sealed  with  his  seal,  the  date  whereof  is  the 
day  and  year  last  aforesaid,  acknowledge 
himself  holden  and  firmly  bound  to  the  said 
James,  in  the  sum  of  401.  lawful 
*246  mo*ney,  to  be  paid,  &c. 

Traverse. — Issue. 

And  the  said  James  in  fact  says,  that  the 
said  John  did  not,  on  the  said day  of 


in  said  condition  specified,  nor  on  any  other 
day,  either  before  or  since  that  time,  pay  to 
the  said  James,  the  said  sum  of  201.  which 
he  the  said  John  ought  to  have  paid  to  the 
said  James,  upon  that  day;  and  hereof  he 
puts  himself  on  the  country  for  trial — and 
the  plaintiff  likewise. 

Jury  awarded.— Verdict. 

Wherefore,  let  a  jury  come,  who  are  neither 
of  kin  to  the  plaintiff  or  defendant,  to  rec- 
ognize between  the  said  parties,  on  the  issues 
aforesaid;  and  afterwards,  to  wit,  at  the 
same  county  court,  holden  at  Rutland,  within 
and  for  the  county  of  Rutland,  on  the  said 
third  Tuesday  of  November,  in  the  year  of 
our  Lord  1791,  come  the  jurors  of  the  jury 
abovementioned,  to  wit,  (here,  in  making 
up  the  record,  the  names  of  the  jurors  are  to 

46 


be  inserted)  good  and  lawful  men  of  the 
county  of  Rutland  aforesaid,  and  be- 
ing tried,  *are  sworn  upon  that  jury,     *247 
to  give  a  true  verdict  of  the  matters 
aforesaid,  who.  upon  their  oaths,  say,  they 
find  for  the  plaintiff  to  recover  of  the  defend- 
ant the  sum  of  401.  lawful  money  for  his 
damages,  and  to  recover  his  costs. 
Judgment. 

Whereupon  it  is  considered  by  the  court 
here,  that  the  plaintiff  recover  of  the  defend- 
ant, the  aforesaid  sum  of  401.  lawful  money, 
damages,  and  his  cost,  by  the  court  here  taxed 
at  £.4-10-6',  and  thereof  he  may  have  execu- 
tion. 

SCIBE  FACIAS  AGAINST  BAIL,  ON  MESNE 
PROCESS. 

Alsted,  vs.  Goodman  &  Jeykil. 
RUTLAND  COUNTY. 

Whereas  Abel  Alsted,  of  Claredon,  in  the 
county  of  Rutland,  heretofore,  to  wit,  at  Rut- 
land in  said  county,  on  the  24th  day  of  Octo- 
ber, in  the  year  of  our  Lord  1791,  took  out  a 
writ  of  attachment  against  Peter  Penniless, 
of  Pittsford,  in  said  county,  at  the  suit 
of  him  the  said  *Abel,  in  an  action  of  *248 
the  case,  on  promises,  demanding  dam- 
ages the  sum  of  501.  which  said  writ  was 
signed  by  N.  O.  then  and  still  clerk  of  the 
county  court  for  the  county  of  Rutland  afore- 
said, bearing  date  the  day  and  year  last  afore- 
said, and  made  returnable  to  the  county 
court,  then  next  to  be  holden  at  Rutland,  in 
for  said  county  of  Rutland,  on  the  3d  day  of 
November,  in  the  year  of  our  Lord  1791;  and 
the  said  Abel  delivered  the  same  writ  to 
Jonathan  Bell,  then  and  still  sheriff  of  said 
county,  to  serve  and  return  according  to  law; 
and  afterwards,  to  wit,  on  the  day  and  year 
last  aforesaid,  the  said  Jonathan  Bell,  sheriff 
as  aforesaid,  thereon  arrested  and  took  the 
body  of  the  said  Peter,  at  the  aforesaid  suit 
of  the  said  Abel;  and  the  said  Peter  being  so 
arrested,  and  in  custody  of  the  said  Jonathan 
Bell,  sheriff  as  aforesaid,  George  Goodman 
and  Justus  Jeykil,  both  of  said  Pittsford, 
became  bail  and  sureties  for  the  said  Peter, 
that  he  should  appear  in  said  suit  of 
*the  said  Abel  as  aforesaid,  and  re-  *249 
spond  the  judgment,  which  should  be 
therein  obtained,  if  any,  by  endorsing  their 
names,  severally,  with  their  own  hands,  on 
the  back  of  said  writ,  according  to  the  form 
and  effect  of  the  statute  in  such  case  made 
and  provided;  and  the  said  writ,  being  le- 
gally returned  to  said  county  court,  holden 
at  Rutland,  in  and  for  the  county  of  Rut- 
land aforesaid,  the  said  suit  was  continued 
until  the  county  court  held  at  Rutland,  in 
and  for  the  county  aforesaid,  on  the  —  —  day 
of  March,  in  the  year  of  our  Lord  1792,  at 
which  court  the  said  Abel,  then  and  there, 
by  the  consideration  and  judgment  of  the 
said  court,  recovered  against  the  said  Peter, 
in  the  suit  aforesaid,  the  sum  of  401.  for  his 
damages,  and  the  sum  of  £.4-10  for  his  costs 

N.  CHIP. 


APPENDIX. 


249 


in  and  about  his  said  suit;  and  afterward,  to 
wit,  on  the  25th  day  of  March,  in  the  year  of 
our  Lord  1792,  and  within  30  days  after  the 
rendering  of  the  judgment  aforesaid,  the  said 

Abel  prayed  out  his  writ  of  execu- 
*250  *tion  on  said  judgment,  against  the 

said  Peter,  dated  the  day  and  year  last 
aforesaid,  and  signed  by  N.  O.  clerk  of  said 
court,  returnable  within  60  days  from  the 
date  last  aforesaid,  and  delivered  the  same 
writ  of  execution  to  Jonathan  Bell,  then  and 
still  sheriff  of  said  county,  to  levy,  serve,  and 
return,  according  to  law;  and  afterwards  to 
wit,  at  Rutland  aforesaid,  on  the  10th  day  of 
May,  in  the  year  of  our  Lord  1792,  and 
within  sixty  days  next  after  the  rendering  of 
the  judgment  aforesaid,  the  said  Jonathan 
Bell,  sheriff  as  aforesaid,  returned  the  said 
writ  of  execution  into  the  office  of  the  clerk 
of  said  county  court,  with  a  return  legally 
thereon  endorsed,  that  he  could  find  neither 
body  nor  estate  of  the  said  Peter,  within  his 
county,  wherewith  to  satisfy  said  writ  of  ex- 
ecution; and  the  judgment  aforesaid  yet  re- 
mains in  full  force,  not  reversed,  annulled, 
set  aside,  or  in  any  wise  paid  or  satisfied  to 
the  said  Abel;  whereof  the  said  Abel  hath 
supplicated  a  proper  remedy  to  be  provided 

for  him  in  that  behalf. 
*251        *To  the  end,  therefore,  that  justice 

may  be  done,  you  are  hereby  required, 
&c.  to  make  known  to  the  said  George  Good- 
man and  Justus  Jeykil,  that  they  be  before 
the  county  court,  next  to  be  holden  at  Rut- 
land, in  and  for  the  county  of  Rutland,  on 

the day  of  November,  in  the  present 

year  of  our  Lord  1792,  to  shew  cause,  if  any 
they  have,  wherefore  the  said  Abel  should 
not  have  execution  against  them  for  his  dam- 
ages, (or  debt,  as  the  case  may  be)  and  cost 
as  aforesaid,  according  to  the  form,  force, 
and  effect  of  the  statute  in  such  case  made 
and  provided;  and  farther  to  do  and  receive 
that,  which  the  said  court  shall  then  consider 
of  them  in  this  behalf:  hereof  fail  not  &c. 
Dated  at  Rutland,  this  5th  day  of  June,  in 
the  year  of  our  Lord  1792. 

E.  M.  Judge. 

*252  *PLEA  TO  THE  ABOVE,  THAT  THE 
BAIL  RENDERED  THE  BODY  OF  THE 
PRINCIPAL  IN  COURT. 

And  now  the  said  George  Goodman  and 
Justus  Jeykil,  by  II.  their  attorney,  come 
into  court  here,  plead  and  say,  that  the  said 
Abel  ought  not  to  have  execution  against 
them  for  his  damages  and  cost  aforesaid,  be- 
cause they  say,  that  after  the  said  George 
and  Justus  became  sureties  for  the  appear- 
ance of  the  said  Peter,  as  in  the  said  writ  of 
scire  facias  of  the  said  Abel  is  supposed,  and 
before  the  rendering  of  judgment  against  the 
said  Peter  in  the  suit  of  the  said  Abel  as 
aforesaid,  to  wit,  at  a  county  court  holden  at 
Rutland,  in  and  for  the  county  of  Rutland, 
on  the  3d  day  of  November,  in  the  year  of 
our  Lord  1791,  the  said  George  and  Justus 
did,  setting  the  said  court,  render  up  the 

N.  CHIP. 


body  of  the  said  Peter  in  said  court,  in  dis- 
charge of  themselves,  as  sureties  for  the  ap- 
pearance of  the  said  Peter,  in  the  aforesaid 
suit  of  the  said  Abel;  and  the  said  Peter 
was,  by  the  order  of  said  court,  *then  *253 
and  there  received  into  custody  of  an 
officer  of  said  court,  on  the  aforesaid  suit  of 
the  said  Abel,  and  a  record  of  the  said  render 
made  in  said  court;  as  by  the  records  and 
proceedings  of  the  said  court  here  may  more 
fully  appear,  and  this  they  are  ready  to  verify ; 
wherefore  they  pray  judgment,  whether  the 
said  Abel  ought  to  have  execution  against 
them  for  his  damages  and  costs  aforesaid. 

DECLARATION  ON  A  PRISON  BOND,   BY   THE 
ASSIGNEE  OF  THE  SHERIFF. 

Simon  Sears  vs.  Richard  Roe. 

to  answer  to  Simon  Sears,  of  Rut- 
land in  the  county  of  Rutland,  assignee  of 
J.  B.  sheriff  of  said  county,  in  a  plea,  that 
to  the  said  Simon  the  said  Richard  Roe  render 
the  sum  of  1001.  lawful  money,  which  he 
owes  and  unjustly  detains,  for  this,  to  wit, 
that,  whereas,  at  a  county  court  holden  at 
Rutland,  in  and  for  the  county  of 
*Rutland,  on  the  3d  day  of  November,  *254 
in  the  year  of  our  Lord  1791,  the  said 
Simon,  by  the  consideration  of  said  court,  re- 
covered judgment  against  Timothy  Rolls,  of 
Ira,  in  said  county,  for  the  sum  of  501.  lawful 
money,  for  his  damages  which  he  had  sus- 
tained by  reason  of  the  non-performance  of 
certain  promises,  and  for  the  sum  of  £.4-10-6 
for  his  costs,  in  and  about  his  suit  in  that 
behalf  laid  out  and  expended;  and  after- 
wards, to  wit,  at  Rutland  aforesaid,  on  the 
25th  day  of  November,  in  the  year  of  our 
Lord  1791,  aforesaid,  the  said  Simon  took  out 
a  writ  of  execution  against  the  said  Tim- 
othy, in  due  form  of  law,  on  the  judgment 
aforesaid,  dated  the  day  and  year  last  afore- 
said, signed  by  N.  O.  clerk  of  said  court,  and 
returnable  within  60  days  from  the  date 
aforesaid,  and  delivered  said  writ  of  execu- 
tion to  J.  B.  then  and  still  sheriff  of  said 
county,  to  levy,  serve,  and  return,  according 
to  law;  and  afterwards,  to  wit,  at  Rutland 
aforesaid,  on  the  2d  day  of  January, 
in  the  year  of  our  *Lord  1792,  the  said  *255 
J.  B.  then  being  sheriff  as  aforesaid, 
for  want  of  goods  and  estate  of  the  said  Tim- 
othy, whereof  to  levy  the  debt  aforesaid,  by 
virtue  of  said  writ  of  execution,  and  accord- 
ing to  the  precept  thereof,  arrested  and  took 
the  body  of  the  said  Timothy,  and  him  com- 
mitted to  the  gaol  of  said  county,  within  the 
said  prison,  until  he  should  pay  and  satisfy 
to  the  said  Simon,  his  damages  and  costs 
aforesaid,  as  by  the  said  writ  he  was  com- 
manded; the  said  J.  B.  then  and  still  being, 
by  virtue  of  his  said  office  of  sheriff  of  said 
county,  keeper  of  the.  aforesaid  prison;  and 
the  said  Timothy  being  so  imprisoned,  in  the 
custody  of  said  sheriff,  within  said  prison, 
for  the  debt  of  the  said  Simon,  as  aforesaid, 
was  afterward,  to  wit,  at  Rutland  aforesaid, 

47 


255 


.  CHIPMAN'S  REPORTS. 


on  the  day  and  year  last,  aforesaid,  admitted 
to  the  liberties  of  said  prison,  by  the  sheriff 
aforesaid,  and  on  that  occasion,  and  as  secu- 
rity for  the  said  Timothy  to  indemnify  the 
said  sheriff,  against  any  escape,  or 
*256  other  unlawful  act  of  the  said  *Simon, 
whereby  the  said  sheriff  should  be  sub- 
jected to  damages,  by  reason  of  the  said  Tim- 
othy being  admitted  to  the  liberties  of  the 
prison  as  aforesaid,  the  said  Richard,  by  his 
certain  writing  obligatory,  signed  with  his 
hand,  and  sealed  with  his  seal  (and  ready  to 
be  shewn  to  the  court)  the  date  whereof  is  the 
same  day  and  year  last  aforesaid,  became 
holden,  and  firmly  bound,  to  the  said  J.  B. 
then,  and  still  sheriff,  as  aforesaid,  in  the 
sum  of  1001.  lawful  money,  to  be  paid  to  the 
said  sheriff,  or  to  his  assigns,  when  he  should 
be  afterwards  thereunto  requested,  under  the 
following  condition: — If  the  said  Richard 
should  indemnify  and  save  harmless,  the  said 
sheriff,  against  any  escape  of  the  said  Tim- 
othy, then  a  prisoner,  for  the  cause  aforesaid, 
and  against  any  other  unlawful  act  of  the 
said  Timothy,  whereby  the  said  sheriff  might 
be  subjected  to  damages  in  the  premises,  by 
occasion  of  the  said  Timothy  being  admitted 
to  the  liberties  of  the  said  prison,  as 
*257  aforesaid,  *then  the  said  writing  obli- 
gatory, to  be  void,  otherwise  of  force; 
as  by  the  said  writing  obligatory,  and  the 
condition  thereof,  (relation  thereto  being  had) 
will  more  fully,  and  at  large  appear;  and  the 
said  Simon  saith,  that  after  the  admission  of 
the  said  Timothy  to  the  liberties  of  the  prison 
as  aforesaid,  and  after  the  making  of  the  said 
writing  obligatory,  to  the  said  sheriff,  by  the 
said  Richard,  as  aforesaid,  to  wit,  at  Rut- 
land, aforesaid,  on  the  10th  day  of  January, 
in  the  year  of  our  Lord  1792,  the  said  Tim- 
othy, having  never  paid  to  the  said  Simon 
his  debt,  as  aforesaid,  nor  been,  in  any  way, 
legally  liberated  or  discharged  from  his  im- 
prisonment, aforesaid,  for  the  debt  of  the 
said  Timothy,  as  aforesaid,  did  escape  from 
the  said  prison,  and  the  liberties  thereof,  and 
go  at  large,  whether  he  would;  whereby  the 
said  sheriff  became  liable,  to  pay  to  the  said 
Simon,  his  debt  aforesaid,  for  which  the 
said  Timothy  was  committed  to  prison,  as 
aforesaid,  and  was  thereby  subjected 
*258  *to  loss  and  damage;  by  reason 
whereof,  the  writing  obligatory,  afore- 
said, became  forfeited.  And,  whereas  the 
said  J.  B.  so  being  sheriff,  as  aforesaid,  aft- 
erwards, and  before  the  payment,  of  the  said 
1001.  contained  in  the  said  writing  obligatory, 
or  any  part  thereof,  to  wit,  on  the  5th  day  of 
February,  in  the  year  of  our  Lord  1792,  at 
Rutland  aforesaid,  at  the  request  of  the  said 
Simon,  the  creditor,  for  whose  debt  the  said 
Timothy  was  committed  to  prison,  as  afore- 
said, according  to  the  form,  force,  and  effect 
of  the  statute  in  such  case  made  and  pro- 
vided, in  due  manner,  assign  and  set  over 
the  said  writing  obligatory,  to  the  said  Simon, 
by  writing,  under  the  hand  and  seal  of  the 
said  sheriff,  endorsed  on  the  said  writing 

48 


obligatory,  as  by  the  said  assignment  en- 
dorsed on  the  said  writing  obligatory,  and 
ready  to  be  shewn  to  the  court,  the  date 
whereof  is  the  day  and  year  last  aforesaid, 
more  fully  appears;  by  reason  of  which 
said  premises,  and  by  force  of  *the  *259 
statute  in  such  case  made  and  provided, 
an  action  hath  accrued  to  the  said  Simon,  as 
assignee  of  the  said  J.  B.  sheriff,  as  afore- 
said, to  have  and  recover  of  the  said  Richard, 
the  aforesaid  sum  of  1001.  yet  the  said  Rich- 
ard, although  often  thereto  requested,  and 
demanded,  hath  never  paid  the  said  sum  of 
1001.  or  any  part  thereof,  to  the  said  sheriff, 
before  the  said  assignment,  or  to  the  said 
Simon,  since  the  assignment;  but  hitherto 
hath  refused  to  pay  the  same  to  the  said  sher- 
iff, or  to  the  said  Simon,  and  still  doth  refuse 
to  pay  the  same  to  the  said  Simon,  to  his 
damage,  &c. 

SPECIAL  PLEA  TO  THE   FOREGOING  DECLAR- 
ATION. 

And  now  the  said  Richard  Roe,  by  S  H  his 
attorney  in  court,  here  pleads  and  says,  that 
the  said  Simon,  from  having  and  maintain- 
ing his  said  action,  thereof  against  him  the 
said  Richard,  ought  to  be  barred,  because  he 
says,  that,  after  the  commitment  of  the  said 
Timothy,  to  the  said  prison,  for  the 
*debt  of  the  said  Simon,  as  aforesaid,  *260 
and  after  the  making  of  the  said  writ- 
ing obligatory,  by  the  said  Richard,  as  afore- 
said, the  said  Timothy  having  at  all  times 
then  before  kept  within  the  liberties  of  said 
prison,  to  wit,  on  the  10th  day  of  January, 
in  the  year  of  our  Lord  1792,  the  said  Simon, 
with  intent  wrongfully  to  charge  the  said 
Richard  with  the  said  debt  did,  at  Rutland 
aforesaid,  persuade,  entice,  and  procure,  the 
said  Timothy  to  go  at  large  out  of  the  liber- 
ties of  said  prison,  and  the  said  Timothy,  to 
wit,  at  Rutland  aforesaid,  on  the  day  and 
year  last  aforesaid,  did,  by  the  enticement, 
persuasion,  procurement,  and  consent  of  the 
said  Simon,  go  at  large,  out  of  the  liberties 
of  the  prison  aforesaid;  which  is  the  same 
going  at  large,  and  supposed  escape  of  the 
said  Timothy,  in  the  declaration  of  the  said 
Simon  above  all  edged,  &  this  he  is  ready  to 
verify;  wherefore  he  prays  judgment,  if  the 
said  Simon,  from  having  and  maintaining 
his  said  action  against  him,  ought  not  to  be 
barred. 

*RECOGNIZANCE    OF  BAIL    TAKEN   IN      *261 
COURT. 

RUTLAND,  ss.  County  Court,  —  day  of 

James  Jinks,  vs.  John  Doe. 

Be  it  remembered,  That  in  the  term  of 
November,  in  the  year  of  our  Lord  1792, 
appeared  John  Doe,  of  Rutland,  in  said 
county,  principal,  and  Richard  Roe  &  Robert 
Lilly,  of  Rutland  aforesaid,  bail,  and  ac- 
knowledged themselves  jointly  and  severally 
indebted  to  James  Jinks,  of  the  same  place, 

N.  CHIP. 


APPENDIX. 


261 


** 
** 


in  the  sum  of  1001.  lawful  money,  to  be 
levied  of  their,  and  each  of  their  goods  and 
chattels,  lands  and  tenements,  and  for  want 
therof,  on  their  bodies,  if  default  be  made 
in  the  condition  following: 

The  condition  of  the  above  recognizance  is 
such,  that  if  the  defendant,  John  Doe,  shall 
be  condemned  in  the  action,  and  sliall  pay 
the  condemnation   money,  or  render 
*262     himself  a  prisoner  on  the  writ  *of  ex- 
ecution thereupon  to  be  issued,  then 
the  above  recognizance  to  be  void,  otherwise 
of  force. 

Taken  and  acknowleged 
jn  in  court,  this  22d  day  of 

**  November,  in  the  year 

of  our  Lord  1791. 

N.  O.  Clerk. 

BAIL-PIECE   ON  THE  ABOVE. 


KUTLAND,  ss.  County  Court,  —  day  of 

James  Jinks,  vs.  John  Doe. 

On  a  writ  of  attachment,  at  the  suit  of 
James  Jinks,  of  Rutland,  in  said  county, 
against  John  Doe,  of  said  Rutland,  in  a  plea 
of  debt  of  501. — The  bail  are  Richard  Roe,  of 
said  Rutland,  and  Robert  Lilly,  of  the  same 
place. 

The  party  himself,  and  the  bail,  jointly 
and  severally  in  the  sum  of  1001. 

Taken  and  acknowleged 
in  court,  the  22d  day  of 
November,  in  the  year 
of  our  Lord  1791. 

N.  O.  Clerk. 

*263  *As  by  the  laws  of  this  State,  the 
bail  on  the  original  writ  stand  in  the 
place  of  special  bail,  and  have  a  right,  pend- 
ing the  suit,  or  before  judgment  be  rendered 
on  the  scire  facias,  to  bring  in  the  principal, 
in  discharge  of  themselves;  it  is  conceived, 
that  the  following  will  be  a  proper  form  of  a 
Bail-piece,  to  be  given  by  the  sheriff,  before 
the  return  of  the  writ,  or  by  the  clerk  of  the 
court,  after  the  return,  with  some  little  al- 
teration. 

BAIL-PIECE  BY   THE  SHERIFF. 

James  Jinks,  vs.  John  Doe. 

RUTLAND  COUNTY,  ss. 

On  a  writ  of  attachment,  at  the  suit  of 
James  Jinks,  of  Rutland,  in  said  county, 
against  John  Doe,  of  the  same  place,  in  a 
plea  of  debt  of  501.  returnable  to  the  county 

court  to  be  holden  at  Rutland,  on  the day 

of in  the  year  of  our  Lord  1791. 

*264        "The aforesaid  John  Doe  is  arrested, 
and  the  bail  are  William  Wise,  of  Clar- 
enden,  in  said  county,  and  John  Jocelin,  of 
the  same  place. 

^  By  them   endorsed   on 

(L.S)  the  writ,  the  2d  day  of 

October,  in  the  year  of 
our  Lord  1791. 

J.  B.  Sheriff". 

N.  CHIP. — 4 


RETURN   OF   AN   OFFICER   TO   A  WRIT  OF  EX- 
ECUTION  LEVIED   ON   LAND. 

RUTLAND  COUNTY,  ss. 

Know  all  men  by  these  pres  .its,  That  1 
J.  B.  Sheriff  of  the  county  of  Rutland,  by 
virtue  of  the  within  writ  of  execution  to  me 
directed,  and  by  the  direction  of  J.  W.  the 
creditor  within  named,  did,  at  —  —  in  said 

county,  on  the day  of in  the  year 

of  our  Lord  17 —  levy  the  said  writ  of  execu- 
tion on  a  certain  tract  or  parcel  of  land, 
shewn  to  me  by  the  said  J.  W.  as  the  prop- 
erty of  B.  G.  the  within  named  debtor,  situ- 
ate, lying,  and  being  in afore- 
said, and  *bounded  as  follows,  to  wit.     *265 
Beginning  (here  insert  the  bounds  of 
the  land  as  set  off]  and  afterwards,  to  wit, 

at aforesaid,  on  the  day  and  year  last 

aforesaid,  I  caused  the  same  land,  with  the 
appurtenances  thereof,  to  be  appraised  by 
P  P,  I  N,  and  I  S,  good  and  lawful  freehold- 
ers of  the  vicinity,  chosen,  appointed  «fc 
sworn  as  the  law  directs,  who,  on  their  oaths, 
have  appraised  the  same  at  the  sum  of 
£.40-10-5.  lawful  money,  to  full  satisfaction 
of  the  within  writ  of  execution,  and  the  legal 
cost  thereon  arising,  as  stated  in  the  bill 

hereunto  annexed,  and  on  the  same day 

of in  the  year  of  our  Lord  17 —  I  deliv- 
ered possession  of  the  above  described  prem- 
ises to  the  said  J.  W.  and  caused  him  to  be- 
come seised  thereof. 

In  witness  whereof  I  have  hereunto 
subscribed  my  name,  and  affixed 
my  seal,  the  day  and  year  above 
contained. 

J.  B.    & 

*RECORD   OF   A  CAUSE  BEFORE  A  JUS-      *266 
TICE    OF    THE   PEACE,  ON    A    NOTE, 
WITH     SEVERAL     PLEAS  OF   OFFSET,    AND 
APPEAL. 

On  note. 
RUTLAND  COUNTY. 

Be  it  remembered,  That  at  a  justice's  court 
holden  at  Rutland,  in  the  county  of  Rutland, 
on  the  3d  day  of  October,  in  the  year  of  our 
Lord  1791,  before  N.  O.  justice  of  the  peace 
for  the  county  aforesaid,  E.  B.  of  Rutland, 
aforesaid,  was  summoned  (or  attached)  to 
answer  to  J.  S.  of  the  same  place,  in  an  ac- 
tion of  the  case  on  note; — Whereupon  the 
plaintiff  in  court  complains,  that  the  defend- 
ant, in  and  by  his  certain  note  in  writing 
under  his  hand,  bearing  date  the  4th  day  of 
May,  in  the  year  of  our  Lord  1790,  and  now 
exhibited  to  court,  promised  the  plaintiff, 
for  value  received,  to  pay  to  him  the  sum  of 
31.  lawful  money,  with  interest,  on  the  Hrst 
day  of  October  then  next;  which  promise  the 
defendant  hath  not  performed,  tho'  often  re- 
quested, to  the  plaintiff's  damage  41. — for 
which  he  brings  suit. — 

*D<'fr»  pica,  did  not  promise,.  *267 

And  the  defendant  in  court  pleads 
and  says,  that  he  did  not  promise  as  theplain- 

49 


267 


N.  CHIPMAN'S  REPORTS. 


tiff  hath  alledged,  and  hereof  puts  himself  on 
a  jury  of  the  country  for  trial. 

Offset  1st  for  money  luid  &  received. 

And  he  further  says,  that  the  plaintiff  is 
indebted  to  him  in  divers  sums  of  money; 
for  this,  to  wit,  that  on  the  5th  day  of  Janu- 
ary in  the  year  of  our  Lord  1791,  and  before 
the  commencement  of  the  present  action,  the 
plaintiff  being  indebted  to  the  defendant,  in 
the  sum  of  £.2-5,  for  so  much  money  had  and 
received  to  the  use  of  the  defendant,  at  the 
instance  and  request  of  the  plaintiff,  he,  the 
plaintiff,  did  promise  to  pay  to  the  defend- 
ant, the  said  sum  of  21.  5s.  when  he  should 
be  requested.* 

2d  For  money  laid  out  and  expended. 

And  also  for  this,  that  the  plaintiff,  on  the 
4th  day  of  March,  in  the  year  of  our 
*268     Lord  1791,  and  before  the  ""commence- 
ment of  his,  the  plaintiff's,  action,  be- 
ing indebted  to  the  defendant  in  the  sum  of 
11.  2s.  for  so  much  money  by  the  defendant 
laid  out  and  expended  for  the  use  of  the 
plaintiff,  and  at  his  request,  he  the  plaintiff 
promised  to  pay  to  the  defendant  the  said  sum 
of  11.  2s.  when  thereto  requested. 

On  Note. 

And  also,  for  this,  that  the  plaintiff,  in  and 
by  his  certain  note,  under  his  hand,  dated 
the  5th  day  of  May,  in  the  year  of  our  Lord 
1791,  and  now  exhibited  to  the  court,  prom- 
ised the  defendant,  for  value  received,  to  pay 
to  him  fifteen  shillings  lawful  money,  on  de- 
m;md ;  which  said  sum  was  due  and  payable 
before  the  commencement  of  the  plaintiff's 
said  action.  All  which  said  sums  are  due 
and  owing  to  the  defendant,  from  the  plain- 
tiff; he  therefore  prays  the  same  may  be  set 
off  against  the  plainliffs  demand,  and  that 
the  defendant  may  recover  the  balance  there- 
upon due  to  him. 

*-269      *Pltf.  as  to  the  money,  did  promise. 

And  the  plaintiff  says,  that  as  to  the 
21. 5s.  and  11.  2s.  by  the  defendant  above  men- 
tioned, he  acknowledges,  that  he  did  assume 
and  promise  as  he  hath  alledged. 

To  tJie  note,  did  not  promise. 

And  as  to  the  note,  by  the  defendant  above 
mentioned,  he  says,  that  he  did  not  promise, 
and  hereof  puts  himself  on  a  jury  of  the 
country  for  trial. 

Pit.  in  offset,  1st  on  settled  account. 

And  he  further  says,  that  the  defendant  is 
indebted  to  him  in  divers  other  sums,  for 
this,  to  wit,  that  on  the  first  day  of  June,  in 
the  year  of  our  Lord  1790,  at  -  —  the 
plaintiff  and  defendant  came  together,  com- 
puted and  settled  their  book  accounts,  and 
there  was  found  due  to  the  plaintiff  the  sum 
of  six  shillings  lawful  money,  which  the  de- 


*  This  form  of  record  for  a  declaration  or  plea, 
will  be  proper  in  all  cases  where  one  party  has  in 
any  way  received  money,  which  he  ought  in  equity 
and  good  conscience  to  pay  to  the  other. 

50 


fendant  then  and  there  acknowledged  in 
writing  under  his  hand;  and  being  therefor 
liable,  promised  to  pay  the  same  to  the  plain- 
tiff. 

2d  Goods  sold. 

And  also  for  this,  to  wit,  that  on  the 
14th  day  *of  July,  in  the  year  of  our  *270 
Lord  1790,  and  before  the  commence- 
ment of  the  plaintiff's  action,  the  defendant 
being  indebted  to  the  plaintiff,  in  the  sum  of 
18s.  for  goods  by  the  plaintiff  sold  and  deliv- 
ered to  the  defendant,  at  his  instance  and  re- 
quest, promised  to  pay  to  the  plaintiff  the  said 
sum  of  18s.  when  requested;  yet  he  hath  not 
performed  his  said  promises,  but  the  sums 
aforesaid  are  now  due  and  owing  to  the  plain- 
tiff; he  therefore  prays  that  the  same  may  be 
set  off  against  the  aforesaid  demands  of  the 
defendant,  and  he  the  plaintiff  may  recover 
the  balance,  &c. 

Defendant  did  not  promise. 

And  the  defendant  says,  as  to  the  several 
demands  of  the  plaintiff  in  offset,  last  above 
mentioned,  he  did  not  promise  as  the  defend- 
ant hath  alledged ;  and  of  this  he  puts  him- 
self on  a  jury  of  the  country  for  trial. 

Jury. — Verdict. 

Wherefore  it  is  awarded  that  a  jury  imme- 
diately come,  good  and  lawful  men  of  the 
vicinity,  who  are  of  kin  neither  to  the 
plaintiff  nor  defendant,  *for  the  trial  *271 
of  the  issues  aforesaid,  between  the 
parties  aforesaid ;  and  afterwards,  to  wit,  on 
the  same  3d  day  of  October,  1791,  come  the 
jurors  of  the  jury  aforesaid,  to  wit,  A  M, 
S  T,  I  K,  P  N",  D  S,  and  E  L,  good  and  law- 
ful men,  and  are  sworn  upon  that  jury,  to 
give  a  true  verdict  between  the  parties  afore- 
said; who,  upon  their  oaths,  say,  that  they 
find  for  the  plaintiff  to  recover  of  the  defend- 
ant, the  sum  of  31.  lawful  money,  damages, 
and  his  costs:  wherefore,  it  is  adjudged  by 
the  said  Justice,  that  the  plaintiff  recover  of 
the  defendant,  the  said  sum  of  31.  lawful 
money,  and  the  sum  of  18s.  for  his  costs  in 
and  about  this  suit. 

Appeal. 

And  now  the  defendant,  within  two  hours 
after  the  rendering  of  the  aforesaid  judgment, 
prays  that  an  appeal  may  be  granted  him,  in 
the  matters  aforesaid,  to  the  county  court, 
next  to  be  holden  at  Rutland,  in  and  for 

the  county  of  Rutland,  on  the *day     *272 

of  November,  in  the  present  year  of 

our  Lord  1791.    It  is  thereupon  ordered  that 

the  defendant  be  allowed  his  appeal. 

The  defendant  as  principal,  and  W  S,  & 
I  K,  as  sureties,  recognized  to  the  plaintiff 
in  the  sum  of  201.  for  the  prosecution  of  the 
said  appeal,  in  due  form  of  law. 

The  aforegoing  is  a  true 
**  copy  from  the  record 

**  with  a  minute  of  the 

recognizance,      exam- 
ined by 
N.  O.  Justice  of  Peace. 

N.  CHIP. 


APPENDIX. 


272 


A  copy  of  the  writ  should  be  annexed. 

X.  B.  The  form  used  in  a  plea  of  offset, 
will  serve  as  the  form  of  a  declaration  in  all 
cases  of  a  similar  nature. 

*273      ""TRESPASS,   ASSAULT,    AND   BATTERY. 

Be  it  remembered,  That  at  a  Jus- 
tice's court,  holden  at  Rutland,  on  the  10th 
day  of  May,  in  the  year  of  our  Lord  1792, 
before  X  O,  justice  of  the  peace  for  said 
county,  A  S,  of  said  Rutland,  was  attached, 
to  answer  to  P  P,  of  the  same  place,  in  a 
plea  of  trespass,  with  force  and  arms,  where- 
upon the  plaintiff  before  the  court,  complains, 
that  at  Rutland  aforesaid,  on  the  2d  day  of 
May  instant,  the  defendant  did  an  assault 
make  upon  the  body  of  the  plaintiff,  and  him 
beat,  bruise,  wound,  and  evilly  entreat,  while 
he  the  said  plaintiff  was  in  the  peace  of  the 
state,  and  about  his  own  business;  to  his 
damage,  as  he  says,  41.  lawful  money;  to  re- 
cover which  he  brings  suit.  And  on  the 
same  10th  day  of  May  comes  here  the  defend- 
ant, and  says,  that  he  is  not  guilty,  as  the 
plaintiff  against  him  hath  alledged,  and  of 

this  he  submits  to  the  said  justice  for 
*274  trial,  and  the  plaintiff  *doth  the  same. 

Whereupon  the  said  justice  having 
duly  heard  and  considered  the  proofs  and  al- 
legations of  said  parties,  finds  that  the  de- 
fendant is  not  guilty,  as  the  plaintiff  hath 
alledged,  and  therefore  adjudges  that  the  de- 
fendant be  thereof  acquitted,  and  that  he  re- 
cover of  the  plaintiff,  his  costs  in  and  about 
this  suit  by  him  expended,  taxed  by  the  said 
justice  at  15s.  and  thereof  he  may  have  exe- 
cution. 

N.  O.  Just,  of  peace. 

ACTION  ON   BOOK   ACCOUNT. 

Be  it  remembered,  That  at  a  justice's  court, 
holden  at  Rutland,  in  the  county  of  Rutland, 
on  the  4th  day  of  June,  in  the  year  of  our 
Lord  1791,  before  N  O,  justice  of  the  peace 
for  said  county,  D  H,  of  Pittsford,  in  said 
county  was  summoned  to  answer  to  M  P,  of 
Rutland  aforesaid,  in  an  action  on  book  ac- 
count, whereupon  the  plaintiff,  here  in  court 
complains,  that  before  the  24th  day  of  May, 
last  past,  the  defendant  was  indebt- 
*275  *ed  to  the  plaintiff  on  book,  to  balance 
book  accounts,  the  sum  of  31.  lawful 
money,  which  he  has  never  paid,  to  the  plain- 
tiff's damage  41. 

And  the  defendant  here  in  court  says,  that 
he  does  not  owe  the  plaintiff  as  he  hath  al- 
ledged, and  he  further  says,  that  there  is 
subsisting  between  the  plaintiff  and  defend- 
ant mutual  accounts, yet  unsettled,  lie  there- 
fore prays  that  the  same  may  be  tried  by  a 
jury  of  the  country:  wherefore,  it  is  ordered 
that  a  jury  immediately  come,  good  and  law- 
ful men  of  the  country,  who  are  of  kin  neither 
to  the  plaintiff  nor  to  the  defendant,  to  rec- 
ognize between  the  said  parties  in  the  mat- 
ters aforesaid.  Afterwards,  to  wit,  on  the 

N.  CHIP. 


same  4th  day  of  June,  in  the  year  of  our 
Lord  1792  aforesaid,  come  the  jurors  of  the 
jury  aforesaid,  to  wit,  A  R,  &c.  good  and 
lawful  men,  and  are  sworn  upon  that  jury, 
to  give  a  true  verdict  between  the  parties 
aforesaid,  who  upon  their  oaths  say,  that  the 
defendant  is  indebted  to  the  plaintiff, 
the  sum  of  *10s.  to  balance  their  book  *276 
accounts,  they  therefore  find  for  the 
plaintiff  to  recover  of  the  defendant,  the 
aforesaid  sum  of  10s.  lawful  money  and  his 
costs.  "Whereupon  it  is  adjudged  and  or- 
dered, by  the  said  justice,  that  the  plaintiff 
recover  of  the  defendant,  the  aforesaid  sum 
of  10s.  and  his  costs,  taxed  at  18s.  lawful 
money,  and  thereof  he  may  have  execution. 
N.  O.  Justice  of  peace. 

ON  NOTE,  THE  DEFENDANT  BEING  OUT  OP 
THE  STATE. 

RUTLAND  COUNTY. 

Be  it  remembered,  That  at  a  justice's  court, 
holden  at  Rutland,  in  the  county  of  Rutland, 
on  the  7th  day  of  August,  in  the  year  of  our 
Lord  1791,  C  D,  of was  by  his  prop- 
erty attached  to  answer  to  A  S,  in  an  action 
on  note,  whereupon  the  plaintiff  here  in 
court  complains,  that  the  defendant  in  and 
by  his  certain  note  in  writing,  under  his 
hand,  dated  the  27th  day  of  April,  in 
the  year  of  our  *Lord  1790,  and  now  *277 
exhibited  to  the  court,  promised  the 
plaintiff  to  pay  to  him,  for  value  received, 
the  sum  of  21.  4s.  lawful  money  on  demand, 
with  interest;  yet  the  defendant  hath  never 
performed  his  said  promise,  to  the  plaintiff's 
damage  as  he  saith,  the  sum  of  31.  to  recover 
which  he  brings  suit. 

And  because  it  appears  to  the  said  justice 
here,  that  the  defendant  at  the  time  of  serv- 
ing the  writ  of  the  plaintiff  in  this  action, 
was  absent  out  this  state,  and  hath  not  re- 
turned within  the  same,  since  that  time,  it 
is  therefore  ordered  that  this  court,  with  the 
action  aforesaid,  be  adjourned  until  the  30th 
day  of  this  instant  August,  at  2  of  the  clock, 
after  noon  of  said  day,  at  this  place ;  at  which 
day  comes  the  plaintiff,  and  because  the  said 
defendant  hath  not  returned  within  this 
state,  and  it  doth  not  appear  that  the  said 
defendant  hath  had  any  notice  of  the  plain- 
tiff's said  action,  commenced  against  the  de- 
fendant as  aforesaid;  it  is  therefore 
ordered  that  this  court,  with  *lhe  ac-  *278 
tion  aforesaid,  be  fuither  adjourned, 
until  the  25th  day  of  September  now  next, 
at  2  of  the  clock  afternoon  of  said  day,  at 
this  place;  at  which  day  comes  the  plaintiff, 
and  the  defendant  being  three  times  solemnly 
called,  doth  not  come,  but  thereof  maketh 
default;  whereupon  it  is  adjudged  and  or- 
dered by  said  justice,  that  the  plaintiff  re- 
cover of  the  defendant  the  sum  of  21.  9s. 
damages,  and  the  sum  of  H.vG  for  his  costs, 
and  hereof  he  may  have  execution. 

N.  O.  Justice  of  peace. 

51 


278 


N.  CHIPMAN'S  REPORTS. 


THE  DECLARATION  IN  TROVER  IS,  BY  REASON 
OF  THE  FICTION,  TOO  INTRICATE  TO  BE  IN- 
TRODUCED INTO  JUSTICES  RECORDS.  IT  IS 
CONCEIVED  THAT  THE  FOLLOWING  FORM, 

WHICH  CONTAINS  THE  SUBSTANTIAL  PART 
OF  THE  PLKADINGS  IN  THAT  ACTION,  MAY 
WELL  BE  ADOPTED. 

RUTLAND  COUNTY. 

Be  it  remembered,  That  at  a  justice's 
court,  holden  at  Rutland,  in  the  county  of 
Rutland,  on  the  17th  day  of  Novem- 
*279  ber,  *in  the  year  of  our  Lord  1791,  be- 
fore N  O,  justice  of  the  peace  for  said 
county,  John  Brian,  of  said  Rutland,  was 
summoned  to  answer  to  James  Morey,  of  the 
same  place,  in  an  action  on  the  case;  where- 
upon the  plaintiff  here  in  court  complains, 
that  at  Rutland  aforesaid,  on  the  23d  day  of 
October  last  past,  the  defendant  took  and  de- 
tained from  the  plaintiff,  one  certain  two- 
year-old  steer,  of  a  red  colour,  the  property 
of  the  plaintiff,  of  the  price  and  value  of  31. 
and  did,  at  Itutland  aforesaid,  on  the  day  and 
year  last  aforesaid,  without  law  or  rjght, 
convert  the  steer  aforesaid  to  the  defendant's 
use — to  the  plaintiff's  damage,  as  he  says,  31. 
to  recover  which,  he  brings  suit. 

And  the  defendant,  because  he  is  not  pre- 
pared for  his  defence  in  that  behalf,  prays 
that  this  action  may  be  adjourned  until  the 
25th  day  of  instant  November;  Whereupon 
it  is  ordered  by  the  said  justice,  that  this 
court,  with  the  said  action,  be  ad- 
*280  journed  until  the  25th  day  *of  instant 
November,  at  9  of  the  clock  in  the 
forenoon  of  said  day,  at  this  place.  And  the 
same  time  is  given  to  the  parties  aforesaid. 
At  which  day  come  the  said  parties,  and  the 
defendant  pleads  and  says,  that  he  is  not 
guilty  as  the  plaintiff  hath  alledged,  and 
hereof  puts  himself  on  a  jury  of  the  country 
for  trial;  wherefore  it  is  awarded  that  a  jury 
immediately  come,  &c. 

RECOGNIZANCE    IN    AN    APPEAL,    CERTIFIED 

AT  LARGE.     [See  p.  272.  ante.] 

RUTLAND  COUNTY. 

Be  it  remembered,  That  on  the  3d  day  of 
October,  in  the  year  of  our  Lord  1791,  before 
N  O,  justice  ot  the  peace  for  the  county 
aforesaid,  personally  appeared  E  B,  of  Rut- 
land, in  said  county,  principal,  and  J  G,  and 
S  F,  of  the  same  place,  sureties,  and  acknowl- 
eged  themselves  jointly  and  severally  in- 
debted to  J  S,  of  said  Rutland,  in  the  sum  of 
201.  lawful  money,  to  be  levied  of  their,  and 
each  of  their  goods  and  chattels,  lands 
*281  and  te*nements;  and  for  want  thereof, 
on  their  bodies,  if  default  be  made  in 
the  condition  following: 

The  condition  of  the  above  recognizance  is 
such,  that  if  the  said  E  B,  shall  prosecute 
his  appeal  now  prayed  out  against  J  S,  to 
effect,  and  answer  and  pay  all  intervening 
damages  occasioned  by  reason  of  the  delay, 
to  the  said  E  B,  with  additional  costs,  in  case 

52 


judgment  be  affirmed,  then  this  recognizance 
to  be  void,  otherwise  of  force. 

Taken  and  acknowleged 
xx  this  3d  day  of  October, 

**  in    the    year    of    our 

Lord,  1791,  before 
N  O,  Justice  of  Peace. 

A  RECOGNIZANCE  TO  BE  SENT  UP  BY  A  JUS- 
TICE OF  THE  PEACE,  IN  A  CRIMINAL  PROS- 
ECUTION. 

RUTLAND  COUNTY. 

Be  it  remembered,  That  on  the  24th  day  of 
June,  in  the  year  of  our  Lord  1792, 
before  N  O,  *justice  of  peace  for  the  *282 
county  of  Rutland,  personally  appeared 
L  I,  of  Rutland,  in  said  county,  principal, 
and  E  P,  and  J  O,  of  the  same  place,  sure- 
ties, and  acknowledge  themselves  jointly 
and  severally  indebted  to  the  Treasurer  of 
the  State  of  Vermont,  in  the  sum  of  5001. 
lawful  money,  to  be  levied  of  their,  and  each 
of  their  goods  and  chattels,  lands  and  tene- 
ments; and  for  want  thereof,  on  their  bodies, 
if  default  be  made  in  the  condition  follow- 
ing: 

The  condition  of  the  above  recognizance 
is  such,  that  if  the  above  named  L  I,  charged 
before  me,  with  having  counterfeited,  and 
assisted  in  counterfeiting  the  current  coins 
of  this  State  of  Vermont,  shall  make  his  per- 
sonal appearance  before  the  supreme  court, 
to  be  holden  at  Rutland,  in  and  for  the  county 
of  Rutland,  on  the  2d  Tuesday  of  August 
now  next,  and  answer  to  the  matters  and 
things,  which  shall  then  and  there  be  objected 
to  him  in  this  behalf,  shall  abide  the 
order  of  the  said  supreme  *court,  and  *283 
not  depart  without  leave  of  the  same, 
then  tins  recognizance  to  be  void,  otherwise 
of  effect. 

Taken  and  acknowleged 
,,.*  this  4th  day  of  August, 

**  in  the  year  of  our  Lord 

1791,  before 
N  O,  Justice  of  Peace. 

RECOGNIZANCE  FOR  A  WITNESS  TO  APPEAR 
AND  TESTIFY. 

RUTLAND  COUNTY. 

Be  it  remembered,  That  on  the  24th  day  of 
June,  in  the  year  of  our  Lord  1792,  before 
N  O,  justice  of  the  peace  for  the  county  of 
Rutland,  personally  appeared  T  T,  of  Rut- 
land, in  said  county,  and  acknowleged  him- 
self indebted  to  the  Treasurer  of  the  State  of 
Vermont,  in  the  sum  of  301.  lawful  money, 
to  be  levied  of  his  goods  and  chattels,  lands 
and  tenements,  and  for  want  thereof,  on  his 
body,  if  default  be  made  in  the  condition  fol- 
lowing: 

*The  condition  of  the  above  recog-    *284 
nizance   is  such,    that  if    the  above 
named  T  T,  shall  appear  before  the  supreme 
court  to  be  holden  at  Rutland,  in  and  for  the 
county  of  Rutland,  on  the  2d  Tuesday  of  Au- 

N.  CHIP. 


APPENDIX. 


284 


gust  now  next,  to  testify  his  knowlege  in  a 
certain  prosecution  in  behalf  of  the  (State  of 

Vermont  against  L  J,  of  —  and  shall  not 

depart  without  the  leave  of  said  court,  then 
this  recognizance  to  be  void,  otherwise  of 
force. 

Taken  and  acknowleged 
„.£  this  24th  day  of  June, 

**  in  the  year  of  our  Lord 

1792,  before 
N  O,  Justice  of  Peace. 

RECORD    OF    A    CRIMINAL    PROSECUTION    BE- 
FORE A  JUSTICE  OF  THE  PEACE. 

State  of  Vermont,  vs.  CD. 

RUTLAND  COUNTY. 

Be  it  remembered,  That  at  a  justice's  court, 

holden  at  Rutland,  in  the  county  of  Rutland, 

on  the  16th  dav  of  February,  in  the 

*285    year  of  our  Lord  1792,  before  *N  O, 

justice  of  the  peace  for  said  county, 

C  D,  of  was  brought  to  answer  to 

complaint  exhibited  to  the  said  justice  by 
A  K,  one  of  the  grandjurors  for  said  county, 
who  complains,  that  at  Rutland  aforesaid,  on 
the  12th  day  of  February  instant,  the  said 
C  D,  did,  with  force  and  arms,  an  assault 
make,  upon  the  body  of  one  I  P,  of  said  Rut- 
land, the  said  I  P,  then  being  in  the  peace  of 
the  state,  and  about  his  own  lawful  business, 
and  did  then  and  there  beat,  bruise,  wound 
and  evilly  entreat  the  said  I  P,  and  other 
wrong,  then  and  there  did  against  the  peace 
and  dignity  of  the  state;  and  the  said  C  D, 
being  put  to  answer  to  said  complaint,  pleads 
and  says,  that  he  is  not  guilty,  and  puts  him- 
self on  a  jury  of  the  country  for  trial ;  where- 
fore it  is  awarded",  that  a  jury  immediately 
come,  good  and  lawful  men  of  the  vicinity, 
to  make  deliverance  between  the  State  of 
Vermont,  and  the  said  C  D.  And  after- 
wards, to  wit,  at  Rutland  aforesaid,  on 
*286  the  same  16th  day  *of  February  afore- 
said, come  the  jurors  of  the  jury  above 
mentioned,  to  wit,  A,  B,  &c.  good  and  law- 
ful men  of  the  vicinity,  and  are  sworn  on 
that  jury  to  make  true  deliverance  between 
the  State  of  Vermont,  and  the  said  C  D;  who, 
on  their  oaths,  say,  that  the  said  C  D  is  guilty 
of  the  facts  charged  against  him  in  said  com- 
plaint. Wherefore  the  said  justice  doth  ad- 
judge and  sentence  the  said  C  D,  to  pay  a 
fine  of  15d.  lawful  money  to  the  treasurer  of 
the  said  town  of  Rutland,  and  costs  of  this 
prosecution,  taxed  at  19s.  and  to  stand  com- 
mitted until  he  have  complied  with  said  sen- 
tence. N  O,  justice  of  peace. 

WARRANT   OF    COMMITMENT   ON    THE   ABOVE 
SENTENCE. 

To  the  sheriff  &c. 
RUTLAND  COUNTY. 

Whereas  C.  D.  of was,  on  the  com- 


plaint of  A  B,  one  of  the  grandjurors 
*287    for  said  county,  this  16th  day  of  *  Feb- 
ruary, in  the  year  of  our  Lord  1792, 
before  one  N  O,  Justice  of  the  Peace  for  said 


N.  CHIP. 


county,  duly  convicted  of  an  assault  and  bat- 
tery on  the  body  of  one  I  P,  of  Rutland,  in 
said  county,  and  was  thereupon  sentenced  to 
pay  a  fine  of  16s.  lawful  money  to  the  Treas- 
urer of  the  town  of  Rutland  aforesaid,  and 
the  sum  of  19s.  costs  of  prosecution,  and  the 
said  C  D,  having  neglected  and  refused  to 
perform  said  sentence.  These  are  therefore, 
By  the  authority  of  the  state  of  Vermont 
to  command  you  to  take  the  body  of  the  said 
C  D,  and  him  commit  to  the  keeper  of  the 
gaol  in  said  Rutland,  within  the  said  prison, 
who  is  hereby  commanded  to  receive  the  said 
C  D,  and  him  keep  in  safe  and  close  custody, 
until  he  pay  to  the  treasurer  aforesaid  the 
said  sums  being  11.  lawful  money  in  the 
whole,  and  for  this  warrant,  together  with 
the  cost  of  this  commitment,  and  his  own 
fees,  or  until  the  said  C  D,  be  otherwise 
discharged  by  due  course  of  *law.  *288 
Hereof  you  may  not  fail  of  this  precept 
and  your  doing  herein  make  due  returns  to 
me  according  to  law. 

Given  under  my  hand  at  Rutland,  this 

IQth  day  of  Febmary,  in  the  year 

of  our  Lord  1792. 

N  O,  justice  of  the  Peace. 

WARRANT    OF    COMMITMENT   FOR  NOT  FIND- 
ING  SURETIES. 

To  the  sheriff  &c. 
RUTLAND  COUNTY. 

Whereas  at  Rutland,  in  the  county  of  Rut- 
land, on  the  24th  day  of  June,  in  the  year  of 
our  Lord  1792,  L  I,  of  said  Rutland,  was  on 
a  charge  of  having  added  and  assisted  in 
counterfeiting  the  current  coin  of  this  state, 
by  me  N  O,  justice  of  the  peace  for  the  said 
county,  ordered  to  find  good  and  sufficient 
sureties,  for  his  appearance  before  the  su- 
preme court,  next  to  be  holden  at  Rutland, 
in  and  for  said  county,  on  the  2d  Tuesday  of 
August,  in  the  year  of  our  Lord  1792, 
to  answer  to  matters  and  *things,  *289 
which  should  then  and  there  be  ob- 
jected to  him  in  that  behalf;  and  the  said 
L  I,  having  neglected  and  refused  to  find 
sureties  for  his  appearance  aforesaid. — These 
are  therefore, 

By  the  authority  of  the  State  of  Vermont, 
to  command  you  to  take  the  body  of  the  said 
L  I,  and  him  commit  to  the  keeper  of  the 
gaol  in  said  Rutland,  within  the  said  prison, 
who  is  hereby  commanded  to  receive  the 
said  L  I,  and  him  keep  in  safe  and  close 
custody,  so  that  he  be  had  to  appear  before 
the  said  supreme  court  to  be  holden  at  Hut- 
land  aforesaid,  on  the  3d  Tuesday  of  August 
aforesaid,  or  until  he  find  good  and  sufiicient 
sureties  for  his  appearance  as  aforesaid,  or 
be  otherwise  discharged  by  due  course  of 
law.  Of  your  duty  herein  fail  not.  Make 
due  return  of  this  precept  according  to  law. 
Qiven  under  my  hand  at  Rutland, 
the  25M  day  of  June,  in  the 
year  of  our  Lord  1792. 

2V  O,  Justice  of  peace. 

*  63 


A  TABLE  OF  THE  PRINCIPAL  MATTERS 

CONTAINED  IN  THE  REPORTS. 


*290 


*ASSUMPSIT. 


Where  the  plaintiff  might  have  had  trover, 
for  a  note  in  the  hands  of  the  defendant;  if  the 
note  be  sold,  he  may  have  assumpsit  for  the 
money.  Wier  v.  Church,  98. 

AUTHORITY. 

A  person  acting  under  authority,  must  pur- 
sue that  authority — Cannot  act  by  virtue  of  his 
authority,  and  in  his  private  capacity,  in  the 
same  instrument.  Lyon  v.  Ide,  52. 

BURGLARY. 

Indictment  for  burglary  quashed,  for  want 
of  a  noctantur.  State  v.  Mather,  32. 

CITATION. 

A  citation  to  appear  in  the  supreme  court, 
must  be  signed  by  a  judge.  Parker  v.  Par- 
ker, 27. 

COLLECTOR. 

A  collector  of  proprietors  taxes  has  a  naked 
power  to  sell  the  delinquent's  land,  but  no  in- 
terest in  the  land.  He  must  pursue  his  power 
strictly,  and  give  all  previous  notices  required 
by  law,  or  his  sales  are  void.  Under/till  v. 
Smith,  82. 

CONDITION. 

If  from  the  nature  of  the  transaction,  for- 
bearance to  do  a  certain  act,  on  the  one  part, 
be  necessary  to  render  a  performance  of  any 
avail,  or  even  possible,  on  the  other;  it  must, 
tho'  not  expresly  mentioned,  be  considered  a 
condition  precedent.  Wier  v.  Church,  97. 


DIVISION. 


See  Partition. 


EJECTMENT. 

Though  the  lease  be  a  fiction,  it  must  by  pos 
Bibility,  be  a  good  subsisting  lease,  at  the  time 
of  commencing  the  action,  at  the  time  of  the 
supposed  ouster,  and  at  the  supposed  time  of 
making  the  lease.  Shaltuck  v.  Tucker,  71. 

If  before  the  bringing  of  the  action,  the  les- 
sor have  conveyed  in  fee  to  the  plaintiff,  the 
lessee  in  the  action,  the  lease  is  merged.  S.  C. 
73. 

The  plaintiff  in  ejectment  is  merely  nominal. 
The  interest  belongs  to  the  lessor.  S.  C.  73. 

The  operation  of  the  lease  is  not  confessed 
by  the  rule.  Douglass  v.  Spooner,  74. 

The  plaintiff  cannot  demand  on  a  lease,  and 
recover  in  fee.  £.  C.  75. 


*291 


•ELECTION. 


The  31st  section  of  the  constitution,  that  elec- 
tions shall  be  by  ballot,  does  not  extend  to  the 
election  of  town  officers.  State  v.  Marsh,  20. 


ENDORSER  AND  ENDORSEE. 

In  an  action  against  an  endorser  of  a  note, 
evidence  was  admitted  to  prove  the  purpose  of 
the  endorsement;  and  that  the  note,  on  which 
the  defendant's  name  had  been  endorsed  for  a 
certain  end,  was  paid  and  taken  up  by  one 
Grant,  executor  in  his  own  wrong  on  the  estate 
of  Parker,  the  maker — that  Grant  had  sold  the 
note  to  J.  G.— J.  G.  to  the  plaintiff,  who  filled 
up  the  endorsement  to  himself.  Rhodes  v.  Ris- 
ley,  84.  - 

No  custom  has  prevailed  in  this  State,  to  bind 
the  endorser  contrary  to  agreement  at  the  time. 
S.  C.  89. 

If  the  endorsee  make  any  use  of  the  endorse- 
ment, contrary  to  agreement,  he  is  answerable 
in  damages.  <$.  C.  89. 

An  inconsistency  in  the  case  of  Moses  and 
Macpharlan,  that  the  same  evidence  which  was 
deemed  insufficient  to  free  the  endorser  from 
payment  of  the  money,  should  be  held  suffi- 
cient to  recover  back  the  same  money.  S.  C.  92. 

On  principles,  if  C  take  a  note  of  B,  endorsed 
by  A,  he  must  trust  to  B  for  the  right  which  he 
may  have  against  A.  S.  C.  92. 

ESCAPE. 

In  an  action  for  an  escape,  on  mesne  process, 
the  whole  debt  was  given  in  damages.  Before 
the  court  rendered  judgment,  they  directed  the 
plaintiff  to  enter  a  rule  to  allow  the  officer  the 
benefit  of  the  former  judgment.  Oliver  v. 
Chamberlain,  26. 

EVIDENCE. 

On  a  trial  for  adultery,  reputation  of  a  mar- 
riage cannot  be  admitted  in  evidence;  other- 
wise in  an  action  for  crim.  con.  State  v.  An- 
nice.  10. 

Proprietors  records  may  be  prima  facie  evi- 
dence, that  a  proprietors'meeting  was  legally 
warned;  but  is  not  as  conclusive  as  other  evi- 
dence. ATKewiev.  Putney,  11. 

Proprietary  division  cannot  be  proved  by 
witnesses.  &'.  C.  13. 

EXECUTION. 

Money  collected  on  execution,  is  not  attach- 
able in  the  hands  of  an  officer.  Conant  v.  Dick- 
nell,  67. 

If  an  officer  deliver  property  taken  by  execu- 
tion, on  receit,  he  does  not  wholly  depart  with 
his  lien  AV/vw/t  v.  llvrey,  rfv.  80. 

If  the  property  taken  by  execution  prove  in- 
sufficient, a  second  levy  may  be  made.  £'.  C.  79. 

To  eloign  the  property  receipted,  is  not  a 
rescue;  but  to  some  purposes,  has  the  same  ef- 
fect It  renders  the  execution  ineffectual.  S. 
C,  80. 

FOREIGN  JUDGMENT. 

Foreign  judgment  by  default  impeached. 
Mvddard  v.  Allen.  44. 


N.  C  HIP. 


291 


INDEX. 


FRAUD. 

Where  a  claimant  by  prior  deed,  was  know- 
ing to  a  second  purchase,  a  witness  to  the  sec- 
ond deed,  &c.  and  concealed  his  claim,  it  is  a 
fraud.  Item  v.  Chandler,  62. 

A  deed  first  recorded  may  be  postponed  by 
reason  of  fraud.  Fraud,  if  proved,  invalidates 
as  well  at  law,  as  in  equity.  Ludlow  v.  Gill,  65. 

If  a  subsequent  purchaser  have  notice,  that 
the  equitable  title  is  in  another,  his  purchase, 
as  against  that  title,  is  fraudulent  and  void, 
though  his  deed  be  first  recorded.  S.  C.  65. 

GAOL  BOND. 

An  action  on  a  bond  for  the  liberties  of  the 

prison,  was  brought  by  the  assignee  of  the 

sheriff.     Defendant  plead,  that  the  bond 

*292      was  taken  for  other  things  than  *the  law 

allows,  to  wit,  for  the  prisoner's  good 

behavior,  diet,  and  that  he  should  not  depart 

without  leave  of  the  sheriff.  &c.   Lyon  v.  Ide,  49. 

The  end  of  the  bond  is  to  indemnify  the 
sheriff.  S.  C.  52. 

The  prisoner  cannot  be  obliged  to  take  his 
diet  of  the  sheriff  or  gaoler.  S.  C'.  53. 

Bonds  for  ease  or  favor  void.     £>.  C.  53. 

An  officer  is  punishable  for  taking  more  than 
legal  fees,  and  all  agreements  for  that  purpose 
are  void.  8.  C.  54. 

Such  bond  totally  bad.     S.  C.  56. 

GRANTS. 

Acceptance  and  acquiescence  under  a  second 
grant,  may  be  proved  without  deed.  Paine  & 
Morris  v.  Smead,  102. 

Decision  in  this  case  to  be  made  agreeably 
to  the  law  in  force  at  the  time  of  the  grant, 
which  was  the  common  law  of  England.  S.  C. 
104. 

Grants  made  by  authority  of  the  Crown,  are 
to  be  considered  as  Royal  grants.  S.  C.  104. 

The  King  was  considered  as  the  ultimate 
owner  of  all  lands.  S.  C.  105. 


*293 


*ORDER. 


An  agreement  to  pay  an  order  to  be  drawn, 
shall  bind  after  the  draft  be  made,  and  in  the 
manner  agreed.  Havens  v.  Griffin,  43. 

PARTITION. 

Partition  among  proprietors  of  townships, 
must  be  either  by  deed,  or  in  the  way  prescribed 
by  statute.  M'Kenzie  v.  Putney,  13. 

PAUPERS. 

The  provision  made  by  our  law  for  the  relief 
of  the  poor,  is  a  charitable  provision.  Select- 
men, of  Bennington  v.  M'  Gennes,  47. 

A  pauper  is  not  holden  to  refund  money  ad- 
vanced by  the  town  for  his  relief.  S.  C.  48. 

POOR  PRISONERS. 

The  statute  by  which  poor  prisoners  confined 
for  debt,  may  obtain  a  discharge,  is  in  deroga- 

56 


tion  of  the  common  law  right  of  the  creditor; 
and  is  not  in  a  law  sense  remedial.  Paine  v. 
Ely,  19,  20. 

The  jurisdiction  of  the  justices  in  the  case  of 
poor  prisoners,  is  in  derogation  of  the  jurisdic- 
tion of  the  common  law  courts,  and  is  to  be 
taken  strictly.  S.  C.  20. 

The  mode  prescribed  by  the  statute  must  be 
strictly  pursued.  /S'.  C.  21. 

Citation  to  the  creditor  must  be  issued  by  the 
same  justices,  or  one  of  them,  to  whom  appli- 
cation was  made  by  the  debtor.  S.  C.  22. 

The  hearing  must  be  before  the  justices  who 
issued  the  citation.  S.  C.  23. 

For  one  justice  to  issue  a  citation  for  the 
creditor  to  appear  before  other  justices,  is  ir- 
regular. 8.  C.  24. 

Erroneous  process  is  valid,  till  reversed;  ir- 
regular process  is  void  from  the  beginning. 
S.  G.  24. 

Every  man,  who  procures  a  process  in  his 
favor,  must  see  that  it  is  regular  at  his  peril. 
S.  C.  25. 

PURCHASER. 

A  bona  fide  purchaser,  without  notice,  shall 
not  be  affected  by  the  fraud  of  his  vendor. 
Morrison  &  Freeman  v.  Shalluck,  &c.  39. 

Purchasers  are  not  in  all  respects  representa- 
tives of  the  vendor;  they  have  no  personal  right 
to  demand  satisfaction  for  a  fraud  upon  their 
vendor.  8.  C.  41. 


RECOGNIZANCE. 

Debt  will  not  lie  on  an  implied  covenant  in 
the  condition,  to  prosecute  a  certiorari,  &c. 
Clark  v.  Campbell,  60. 


*SURETY. 


*294 


In  a  case  of  a  bond  for  the  liberty  of  the 
prison,  no  excuse  can  be  admitted  for  the  surety 
which  would  not  equally  avail  the  principal. 
Paine  v.  Ely,  &c.  25. 

TITLE. 

If  there  be  no  title  at  the  time  of  commenc- 
ing an  ejectment,  it  cannot  be  aided  by  any 
subsequent  act.  M'Kenzie  v.  Putney,  13. 

WARRANTY. 

To  support  an  action  on  the  covenant  of 
warranty  in  a  deed  of  conveyance,  there  must 
have  been  an  eviction,  or  some  disturbance 
tantamount.  Rich  v.  Wait,  68. 

WITNESS. 

On  trial  for  adultery,  one  charged  to  be  a 
particeps,  was  not  allowed  to  testify.  State  v. 
Annice,  9. 

In  a  suit  by  a  town,  a  selectman  named  plain- 
tiff in  the  writ,  was  not  allowed  to  testify.  Se- 
lectmen of  Bennington  v.  M'  Gennes,  46. 

N.  CHIP. 


CONTENTS  OF  THE  DISSERTATIONS. 


DISSERTATION  I. 

On  the  statute  adopting  the  common  law..  117 

Common  law  what 118 

How  learnt — adopted  under  restrictions. . .  119 

How  far  applicable  in  this  State 121 

Precedents  how  to  be  regarded 123 

Principles  of  the  British  government— their 

influence  on  its  jurisprudence  131 

Principles  of  the  government  of  this  State 

different 133 

Lord  Mansfield's  opinion  of  the  common 

law 136 

The  statute  adopts  principles  rather  than 

precedents 137 

2d  Section,  adopting  the  statute  laws,  &c..  138 

DISSERTATION  II. 

Intention  of  the  statute 142 

Species  of  conveyances  contemplated 143 

On  the  statute  of  conveyances 144 

Requisites  of  a  deed  of  conveyance 145 

Authority  to  grant 148 

Exception  of  persons  incapable 149 

Conveyance  by  power 150 

Acknowledgement  and  its  effect 152 

Operation  of  a  deed  authenticated  accord- 
ing to  the  statute 154 

Livery  what  155 

Attornment 156 

*295      *Operation  of  the  first  section 157 

2d  Section— Conveyances  not  valid, 

unless 159 

Question  of  construction 160 

Subsequent  purchaser  without  notice 160 

— with  notice 162 

Prior  purchaser  concealing  his  title 164 

What    estates    are    comprehended  in  the 

statute 165 

DISSERTATION  III. 

On  the  statute  of  offsets 167 

N.  CHIP.  * 


What  demands  may  be  set  off 168 

Must  be  in  the  same  right 171 

Accounts 174 

Contracts  not  due 175 

Endorsed  notes  and  bills 176 

DISSERTATION  IV. 

On  the  negotiability  of  notes 181 

Brief  view  of  the  British  law  on  the  same 

subject 182 

Considered  on  principles 194 

Negotiability  not  established  at  common 

law .' 196 

Contract  explained 197 

Endorsee  entitled  according  to  the  tenor 

of  the  contract 198 

Maker  has  given  power  to  appoint  the  pay- 
ment    199 

Analogy  to  the  case  of  an  agent 200 

Maker  holden  as  an  accepter 201 

Defence  against  the  endorsee 204 

Endorser  how  far  holden  to  warrant 206 

Endorsee  must  use  due  diligence 207 

Case  between  endorser  and  endorsee 208 

General  and  restricted  endorsements 209 

Blank  endorsements 211 

*Case  between  the  endorsee  and  the  *296 

maker 216 

Payment  before  notice  of  the  endorsement  217 

Note  obtained  by  fraud.  &c 220 

Note  given  for  money  lent  to  game  with, 
holden  to  be  void  in  the  hands  of  an  en- 
dorsee, by  the  9  Ann 221 

Less  favorable  than  the  case  of  previous 

payment 222 

No  one  ought  to  be  benefited  by  his  own 

fraud 223 

Note  payable  to  bearer,  within  the  same 

reason  as  those  payable  to  order 224 

More  subject  to  fraud 224 

May  be  remedied  by  endorsement 225 

57 


INDEX  TO  THE  APPENDIX. 


Rules  of  the  supreme  court 227 

Record  of  a  cause  in  the  county  court  with 

several  pleas  of  offset,  bar,  &c 231 

Kcire  facias  against  bail  with  a  special  plea  247 
Declaration  by  assignee  on  prison  bond. . .  253 

Special  plea  to  the  same 259 

Recognizance  of  Bail,  and  bail  piece. .  .261—63 
Levy  of  execution  on  land 264 

N.  CHIP. 


Record  before  a  justice  on  note,  with  pleas  of 
offset,  266— Trespass,  273— On  book,  274— On 
note,  defendant  out  of  the  state,  276— Trover, 

278— Recognizance  in  appeal,  280 For 

a  delinquent's  appearance,  281 —  —Wit- 
ness to  appear,  283 — Criminal  prosecution, 
284— Commitment,  286. 


59- 


